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The 
NORTH CAROLINA 

REGISTER 



n\ 



TITU 

ItionI 



IN THIS ISSUE 

EXECUTIVE ORDER 
FINAL DECISION LETTERS 

PROPOSED RULES 

Agriculture 

Economic and Community Development 

Environment, Health, and Natural Resources 

Human Resources 
FINAL RULES RECEIVED 



Revenue 
LIST OF RULES CODIFIED 
RRC OBJECTIONS 



FEB 7 1992 
LAW LIBRARY 



RULES INVALIDATED BY JUDICIAL DECISION 



ISSUE DATE: FEBRUARY 3, 1992 
Volume 6 • Issue 21 • Pages 1563-1636 



TNFORMATTON ABOUT THE NORTH CAROLINA REGISTER AND ADMTNTSTRATTVE rODF 



NORTH CAROLINA REGISTER 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars ($8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 27611-7447. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21 .1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for pubUc comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for pubUcation in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,(X)0 letter size, single spaced pages of 
material of which approximately 35% of is changed armually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
($750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
E)rawer 27447, Raleigh, North Carolina 27611-7447, (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 



ISSUE CONTENTS 




I. EXECurrv E order 

Executive Order 159... 



.1563 



Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, \C 27611-7447 

(919) 733 -2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director APA Services 



II. FINAL DECISION LETTERS 

Voting Rights Act 1566 



III. PROPOSED RULES 
Agriculture 

Structural Pest Control 

Division 1569 

Economic and Community 

Development 

Community Assistance 1579 

Environment, Health, and 

Natural Resources 

Environmental Management .... 1 6 1 1 

Wildlife Resources 

Commission 1619 

Human Resources 

Facility Services 1584 

Social Services 1607 

IV. FESAL RULES 
Revenue 

Motor Fuels Tax 1620 



V. LIST OF RULES CODIFIED 1624 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



VI. RRC OBJECTIONS 1628 

VII. RULES INA ALID.ATED BY 

JUDICIAL DECISION 1631 

VIII. CUMULATFVE INDEX 1633 



NORTH CAROLINA REGISTER 

Publication Schedule 

(October 1991 - December 1992) 



Issue 
Date 



Last Day 

for 

Filing 



Last Day 
for 

Electronic 
FUing 



Earliest 
Date for 
Public 
Hearing 



Earliest 
Date for 
Adoption 
by 

Agency 



Last Day * 

to Earliest 

Submit Effective 

to Date 

RRC 



++++++++*+++++♦++♦+++++*++++++++++++++♦♦++++♦++++++++++♦+++++++++++ 



10/15/91 
11/01/91 
11/15/91 
12/02/91 
12/16/91 
01/02/92 
01/15/92 
02/03/92 
02/14/92 
03/02/92 
03/16/92 
04/01/92 
04/15/92 
05/01/92 
05/15/92 
06/01/92 
06/15/92 
07/01/92 
07/15/92 
08/03/92 
08/14/92 
09/01/92 
09/15/92 
10/01/92 
10/15/92 
11/02/92 
11/16/92 
12/01/92 
12/15/92 



09/24/91 

10/11/91 
10/24,91 
11/07/91 
11/21/91 
12/09/91 
12/20/91 
01/10/92 
01/24/92 
02/10 92 
02/24 '92 
03/11/92 
03/25/92 
04/10/92 
04/24/92 
05/11/92 
05/25/92 
06/10/92 
06/2492 
07/13 92 
07/24/92 
08/11/92 
08/25 92 
09/10 92 
09/24 92 
10/12/92 
10/23/92 
11/06/92 
11/24/92 



10/01/91 
10/18/91 
10/31/91 
11/14/91 
12/02/91 
12/16/91 
12/31/91 
01/17/92 
01/31/92 
02/17/92 
03/02/92 
03/18/92 
04/01/92 
04/17/92 
05/01/92 
05/18/92 
06/01/92 
06/17/92 
07/01/92 
07/20/92 
07/31/92 
08/18/92 
09/01/92 
09/17/92 
10/01/92 
10/19/92 
10/30/92 
11/13/92 
12/01/92 



10/30 91 
11/16/91 

11/30/91 
12/17/91 
12/31/91 
01/17/92 
01/30:92 
02/18/92 
02/29/92 
03/17/92 
03/31/92 
04/16 92 
04/30/92 
05/16/92 
05/30/92 
06/16/92 
06/30/92 
07/16/92 
07/30/92 
08/ 18 92 
08/29/92 
09/16/92 
09/30/92 
10/16/92 
10/30 92 
11/17/92 
12/01/92 
12/16/92 
12/30/92 



11/14,91 
12/01/91 
12/15/91 
01/01/92 
01/15,92 
02/01/92 
02/14/92 
03/04/92 
03/15/92 
04/01/92 
04/15 92 
05/01/92 
05/15/92 
05/31/92 
06/14,92 
07/01/92 
07/15/92 
07/31/92 
08/14/92 
09/02 92 
09/13/92 
10/01/92 
10/15,'92 
10/31, '92 
11/14/92 
12/02/92 
12/16/92 
12/31/92 
01/14/93 



11/20/91 
12/20/91 
12/20/91 
01/20/92 
01/20/92 
02/20/92 
02/20/92 
03/20/92 
03/20/92 
04/20/92 
04/20/92 
05/20/92 
05/20/92 
06/20/92 
06/20/92 
07/20/92 
07/20/92 
08/20/92 
08/20/92 
09/20/92 
09/20/92 
10/20/92 
10/20/92 
11/20/92 
11/20,92 
12/20,92 
12/20/92 
01/20/93 
01/20/93 



01/02/92 

02/03/92 
02/03/92 
03/02/92 
03/02/92 
04/01/92 
04/01/92 
05/01/92 
05/01/92 
06/01/92 
06,01/92 
07/01/92 
07/01/92 
08/03/92 
08 '03/92 
09/01/92 
09/01/92 
10 01/92 
10/01/92 
11/02/92 
11/02/92 
12/01/92 
12/01/92 
01 04/93 
01 04/93 
0201/93 
02/01/93 
03 01/93 
03/01/93 



* The "Earliest Effective Dale" is computed assuming that the agency follows 
the publication schedule above, that the Rules Review Commission approves the 
rule at the next calendar month meeting after submission, and that RRC delivers 
the rule to the Codifier of Rules five (5) business days before the 1st business 
day of the next calendar month. 



EXECUTIVE ORDER 



EXECLTIVE ORDER NLMBER 159 

NORTH CAROLINA GOVERNOR'S 

COMMISSION ON WORKKORCE 

PREPAREDNESS 

WHEREAS, the final report of the previous 
Governor's Commission on Workforce 
Preparedness has increased public awareness in 
connection with the impending skills crisis in 
North Carolina; and 

WHEREAS, an education-economic develop- 
ment link has been forged by the rapid evolution 
m technological advancements and the 
globalization of the economy; and 

WHEREAS, North Carolina's competitive po- 
sition Ln the new emerging global economy is 
threatened by low levels of educational attain- 
ment among some members of our population; 
and 

WHEREAS, the existing vocational, basic and 
remedial education, employment, and job train- 
ing systems lack coordination; and 

WHEREAS, this lack of coordination makes it 
difficult to ascertain duplication of services and 
program impact, and more importantly, does not 
allow for a serious analysis in determining the 
responsiveness of the system in meetmg the needs 
of both employers and individuals in need of 
program services; and 

WHEREAS, the previous Governor's Com- 
mission on Workforce Preparedness saw the need 
for its "permanent embodiment" and the need 
for "establishing a comprehensive and strategic 
planning system for responding to the impending 
workforce preparedness crisis"; 

NOW THEREEORE, by the authority vested 
in me as Governor bv the Constitution and laws 
of North CaroHna, it IS ORDERED; 

Section 1. ESTABLISHMENT 

(a) Executive Order Number 107 is hereby 
terminated, the purpose of the Governor's Com- 
mission on Worklbrce Preparedness established 
in that Order having been accomplished. 

(b) There is hereby established the North 
Carolina Governor's Commission on Workforce 
Preparedness ("Commission"). 

Section 2. MEMBERSHIP 

(a) The membership shall consist of the North 
Carolina Job Training Council and the North 
Carolina Advisory- Council on Vocational and 



Applied Technology Education. The Commis- 
sion shall report directly to the Governor. 

(b) Notwithstanding the directives of this 
Executive Order, the two Councils shall continue 
to perform all duties and responsibilities granted 
under their respective federal and state mandates. 

Section 3. CHAIRPERSON 

The Governor shall appoint a chairperson from 
among the members of the Commission to serve 
at the Governor's pleasure. 

Section 4, EXECLTIVE BOARD 

(a) The Governor shall select from among the 
members of the Commission an Executive Board 
("Board") consisting of not less than seven 
members; provided, however, that a majority of 
the Board shall be representative of the private 
sector to the extent practicable. The Board shall 
provide leadership and guidance to the Commis- 
sion and all other boards, councils, and commit- 
tees specified in this Order in carrying out the 
duties and responsibilities outlined in Section 9. 

(b) The Chairperson of the Commission shall 
also serve as Chairperson of the Board. 

(c) The Governor or his designee shall serve 
as an ex-olTicio member of the Board. 

Section 5. MEETINGS 

1 he Commission or the Board shall meet at 
such times and locations as designated by the 
Chairperson. 

Section 6. QLORLM 

(a) A simple majority of the Commission shall 
constitute a quorum for the transaction of busi- 
ness by the Commission. 

(b) A simple majority of the Board shall con- 
stitute a quorum for the transaction of business 
by the Board. 

Section 7. BYLAWS 

Both the Commission and the Board shall es- 
tabhsh such bylaws as are necessar,' and appro- 
priate for proper implementation of the directives 
of this Executive Order and which are consistent 
with applicable law. 

Section 8. FUNCTION 

(a) The two Councils shall act in partnership 
as a single Commission in providing leadership 
for coordination and strategic planning of 
workforce preparedness policy. 

(b) An Inter-Agency Coordinating Committee 
(ICC) shall be created to include senior-level 
management representation from each state de- 
partment designated as a Workforce 
Preparedness Program in Section 10(b). The 
ICC wLU provide technical and staff support to 



6:21 NORTH CAROLINA REGISTER February i, 1992 



1563 



EXECUTIVE ORDER 



both the Commission and the Board. The 
Chairperson and membership of the ICC shall 
be appointed by the Chairperson of the Com- 
mission. 

Section 9. PI KPOSE 

The Commission shall perform the following 
duties and responsibihtics: 

(a) Advise and recommend to the Governor, 
General Assembly, state departments, other 
pubUc agencies, and the private sector poli- 
cies and programs that enhance North 
Carolina's economy through the develop- 
ment of the State's workforce. 

(b) Direct coordination among all designated 
programs identified under Section 10, pro- 
vided that such coordination shall not inter- 
fere with federally mandated duties and 
responsibilities. 

(c) Establish criteria to facilitate the creation 
of a comprehensive Workforce Preparedness 
System that is market-driven and customer- 
focused. The criteria shall include, but not 
be limited to: 

(1) Standards for establishing common defi- 
nitions and assessment criteria to provide 
convenient entry at any point into the 
comprehensive systems; and 

(2) Standards for creating a data collection 
system to facilitate better e\aIuation and 
more consistent reporting methods and 
linking of data systems to allow tracking 
of chents throughout the various pro- 
grams in the comprehensive system; and 

(3) Standards for developing program evalu- 
ation methods (and procedures) to assess 
actual program outcomes. 

(d) Submit to the Governor and General As- 
sembly a biennial strategic plan for 
Workforce Preparedness to include, but not 
be limited to: 

(1) A statement of goals and objectives for the 
coming biennium; and 

(2) An inventory and assessment of all pro- 
grams identified as part of the workforce 
preparedness system under Section 10 
pro\ided that such invcntor\' and assess- 
ment shall not intertere with federally 
mandated duties and responsibilities; and 

(3) .An assessment of the vocational educa- 
tion, basic and remedial education, em- 
ployment, and job training needs of the 
State's labor market; and 

(4) .\n evaluation of each program in terms 
of consistency in meeting state goals and 
objectives, and reaching desired outcomes 
in relation to the needs of employers and 
individual citizens who are in need of 



program services. This evaluation should 
also report on the progress of each pro- 
gram in meeting the coordination criteria 
of the Commission; and 

(5) Recommendations for policy changes and 
funding to ensure effective implementa- 
tion of the comprehensive system; and 

(6) Recommendations for reducing program 
duplication and effecting cost savings and 
filing gaps in existing pohcies and pro- 
grams. 

(e) Develop and promote strategies for coop- 
eration between education, government and 
the private sector and which leverage private 
resources for the development of the State's 
Workforce Preparedness system. These 
strategies shall specifically focus on promot- 
ing school-to-work transition programs for 
high school students and modernization of 
the workplace through high performance 
work organizations. 

Section 10. WORKFORCE PREPAREDNESS 
PROGR.WIS .AND ACiENCIES 

(a) Subject to their federally mandated duties 
and responsibilities, the folio wmg federal re- 
sources programs are hereby designated as 
Workforce Preparedness Programs: 

- Adult Education Act 

Carl D. Perkins Vocational and Applied 
Technology Education Act 

- Job Training Partnership Act 

- Waaler- Peyser Act 

- Titfe IV of the Social Security Act (JOBS - 

Welfare-to-Work) 

- litle IX of the Social Security Act (Miscella- 

neous Provisions Relating to Employment 
Security) 

- Vocational Rehabditation Act 

- National Apprenticeship Act 

- F'ood Stamp Act (Workfare) 

- Displaced Homemakers Self-Sufficiency As- 
sistance Act 

Internal Revenue Code of 1986 (Targeted 
Jobs Tax Credit, Work Incentive Program) 

- Chapter 2 of the Trade Act (.Adjustment As- 

sistance or Workers) 

- Title V of the Older Americans Act (Com- 
munity Service Employment) 

- Veteran's Job Training Act. 

(b) All State resources programs that are vo- 
cational -, basic and remedial education -, em- 
ployment -, and job training-related are hereby 
designated as Workforce Preparedness Programs. 

(c) The Departments of Economic and Com- 
munity De\'elopment, Commumty Colleges, La- 
bor, Public Instruction, Human Resources, 
Corrections, and .Administration, and all local 



1564 



6:21 NORTH CAROLINA REGISTER February i, 1992 



EXECUTIVE ORDER 



agencies that provide vocational education, basic 
and remedial education, employment, and job 
training services are hereby designated as mem- 
bers of the Workforce Preparedness System. 

Section I ! ■ COOPERATION OF STATE 
AGENCIES 

On request all agencies and departments of the 
State of North Carolina shall cooperate with the 
Commission and the Board in their duties and 
responsibilities as established by this Executive 
Order. 



Section 12. ADMINISTRATION AND 
EXPENSES 

Members shall receive per diem and necessary 
travel and subsistence expenses in accordance 
with N.C.G.S. 138-5, 138-6, or 120-3.1. 

This Executive Order shall be effective as of 
January 3, 1992, and shall remain in effect until 
terminated. 

Done in Raleigh, North Carolina, this the 6th 
day of January, 1992. 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



1565 



VOTING RIGHTS ACT FINAL DECISION LETTERS 



[G.S. 120-30.9H, effective July 16, 1986, requires that all letters and other documents issued by the 
A ttorney General of the United States in which a final decision is made concerning a "change af- 
fecting voting" under Section 5 of the Voting Rights Act of 1965 be published in the North Carolina 
Register. / 



U.S. Department of Justice 
Civil Rights Division 

JRD:LLT:ACJ:tlb 

DJ 166-012-3 Voting Section 

91-4043 P.O. Box 66128 

Washington, D.C. 20035-6128 

December 20, 1991 

Richard J. Rose, Esq. 

Poyner & Spruill 

P. O. Box 353 

Rocky Mount, North Carolina 27802 

Dear Mr. Rose: 

This refers to three annexations (Ordinance Nos. 91-190, 91-184 and 91-189) and the designation 
of the annexed areas to election districts for the City of Rocky Mount in Edgecombe and Nash 
Counties, North Carolina, submitted to the Attomey General pursuant to Section 5 of the Voting 
Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on October 28, 1991. 

The Attomey General does not interpose any objection to the specified changes. However, we 
note that Section 5 expressly provides that the failure of the Attomey General to object does not bar 
subsequent litigation to enjoin the enforcement of the changes. See the Procedures for the Adminis- 
tration of Section 5 (28 C.F.R. 51.41). 

Sincerely, 



John R. Dunne 

Assistant Attomey General 

Civil Rights Division 



By: 



Gerald W. Jones 
Chief, Voting Section 



1566 6:21 NORTH CAROLINA REGISTER February 3, 1992 



VOTING RIGHTS ACT FINAL DECISION LETTERS 



U.S. Department of Justice 
Civil Rights Division 

JRD:GS:TGL;lri 

DJ 166-012-3 Voting Section 

91-4235 P.O. Box 66128 

91-4236 Washington, D.C. 20035-6128 

January 7, 1992 

Michael Crowell, Esq. 
Tharrington, Smith & Hargrove 
P. O. Box 1151 
Raleigh, North Carolina 27602-1151 

Dear Mr. Crowell: 

This refers to the 1991 redistricting plans for the board of commissioners and the board of educa- 
tion Ln Pitt County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the 
Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submissions on November 
8, 1991. 

The Attorney General does not interpose any objection to the specified changes. However, we 
note that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the 
enforcement of the changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41). 

Sincerely, 



John R. Dunne 

Assistant Attorney General 

Civil Rights Division 



By: 



Gerald W. Jones 
Chief, Voting Section 



6:21 NORTH CAROLINA REGISTER February 5, 1992 1567 



VOTING RIGHTS ACT FINAL DECISION LETTERS 



U.S. Department of Justice 
Civil Rights Division 

JRD:.MAP:DOW:gmh 

DJ 166-012-3 Voting Section 

91-4481 P.O. Box 66128 

Washington, D,C. 20035-6128 

Januar>- 17, 1992 

Michael Crowell, Esq. 
Tharrington, Smith & Hargrove 
P. O. Box 1151 
Raleigh, North Carolma 27602 

Dear .Mr. Crowell: 

This refers to the change in the method of election from at large to two double-member districts 
and a single-member district, the districting plan, an increase in the number of city councUmembers 
from four to five, the method of staggering terms of office, the implementation schedule, and the pro- 
cedures for conducting the May 1992 special election for the City of Roanoke Rapids in Halifax 
County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights 
Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on December 5, 1991. 

The Attorney General does not interpose any objection to the specified changes. However, we 
note that Section 5 expressly provides that the failure of the Attorney General to object does not bar 
subsequent htigation to enjoin the enforcement of the changes. In addition, as authorized by Section 
5, we reserve the right to reexamine this submission if additional information that would otherwise re- 
quire an objection comes to our attention during the remainder of the sixty-day review period. See the 
Procedures for the Administration of Section 5 (28 C.F.R. 51.41 and 51.43). 

Sincerely, 



John R. Dunne 

Assistant Attorney General 

CivU Rights Division 



By: 



Gerald W. Jones 
Chief, Voting Section 



1568 6:21 NORTH CAROLINA REGISTER Febniaiy 3, 1992 



PROPOSED RULES 



TITLE 2 - DEPARTMENT OF 
AGRICULTURE 



No 



odce is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Structural Pest Control 
Committee intends to amend rule(s) cited as 2 
NCAC34 .0101 - .0102, .0302, .0313, .0318, .0601 

- .0605, .0902, .1001; and adopt rule(s) cited as 
2 NCAC34 .0329, .0406, .1201 - .1206. 

1 he proposed effective date of this action for 2 
NCAC 34 .1201 - .1206 is May I, 1992: and for 

2 NCAC 34 .0101 - .0102, .0302, .0313, .0318, 
.0329, .0406, .0601 - .0605, .0902, .1001 is July 
I, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on February 18, 1992 at the Board Room, 
Agriculture Building, 2 W. Edenton St., Raleigh, 
N.C. 27601. 

J\eason for Proposed A ction: 2 NCA C 34 . 1201 

- .1206 - Establishes procedures for contested 
cases. 2 NCAC 34 .0101 - .0102, .0302, .0313, 
.0318, .0329, .0406, .0601 - .0605, .0902, .1001 - 
Makes various changes in requirements applicable 
to structural pest control licensees and certified 
applicators, such as written agreements with 
property owners, recordkeeping, financial respon- 
sibility, time for commencing disciplinary actions, 
and technical and wording changes. 



Co 



■ omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. Comments may be submitted in writing 
no later than March 4, 1992 by mail, addressed 
to the Chairman of the North Carolina Structural 
Pest Control Committee, P.O. Box 27647, 
Raleigh. NC 27611. 

CHAPTER 34 - STRUCTURAL PEST CONTROL 
DIVISION 

SECTION .0100 - INIRODUCTION AND 
DEFINITIONS 

.0101 INTRODUCTION 

(a) Applicable to licensees only: 

(1) .'Ml licensed structural pest control opera- 
tors shall faithfully and honestly carry out 
the provisions and terms of all contracts 
into which they enter for the control of 
structural pests. 

(2) In addition to following all minimum re- 
quirements outlined in the rules and reg- 
ulations herein, licensed structural pest 



control operators shall be responsible for 
obtaining satisfactory control of all in- 
sects, rodents, fungi, or other pests indi- 
cated in the control agreement(s). 
(3) Licensed structural pest control operators 
shall be responsible for obtaining satisfac- 
tory control of active infestations of pests 
for which control agreements were entered 
into prior to July 1, 1955, if contracts 
covering said agreements are currently ef- 
fective, 
(b) Applicable to both licensees and certified 
applicators: 

(1) The methods and materials used in struc- 
tural pest control procedures shall be in 
accordance with the current label registra- 
tions of federal and State of North 
Carolina agencies responsible for making 
such registrations. 

(2) The possession, usage, application, stor- 
age, and disposal of all pesticides and all 
pesticide containers shall be in conformity 
with all federal and North Carolina State 
laws and regulations governing the pos- 
session, usage, application, storage, and 
disposal of pesticides and pesticide con- 
tainers. 

(3) Licensed structural pest control operators 
or their authorized agents and certified 
applicators (oxcopt those Het omployod 
by a liconflOQ aft4 net- ur . ing a rootrictod uso 
pooticido) shall maintain at their business 
location(s) copies of current registered la- 
bels for all pesticides used. Such labels 
shall be made available for inspection 
upon request of the onforcomont agoncy 
Division or the committoo. Committee. 

Statutory Authority G.S. 106-65.29. 

.0102 DEFINITIONS 

For the purpose of interpretation of the rules, 
regulations, definitions, and requirements of the 
North Carolina Structural Pest Control Com- 
mittee and the Structural Pest Control Law, and 
unless otherwise required by the context, the fol- 
lowing definitions shall prevail, to wit: 

(1) "Act and/or law" means the Structural 
Pest Control Act of North Carolina of 1955. 

(2) "Active infestation of a specific organism" 
means evidence of present activity by that 
organism, visible in, on, or under a structure, 
or in or on debris under the structure. 

(3) "Acutely toxic rodenticidal baits" means 
all baits that contain rodcnticides other than 
barium carbonate, norbormide, red squill, 
and the anticoagulants. 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



1569 



PROPOSED RULES 



(4) "Board of Agriculture" means the Board 
of Agriculture of the State of North 
Carolina. 

(5) "Commercial certified applicator" shall 
mean any certified applicator employed by 
a licensed individual. 

(6) "Common laborer" as used in G.S. 
106-65.31 of the Structural Pest Control Act 
shall mean an employee of a Ucensed struc- 
tural pest control operator who does not 
engage in or supervise the mixing or appli- 
cation of pesticides for the control of struc- 
tural pests. 

(7) "Commercial structure" means any struc- 
ture which is not a residential structure; in- 
cluding but not hmited to shopping centers, 
offices, nursing homes and similar structures. 

(8) "Complete surface residual spray" means 
the over-aU application of any pesticide by 
spray or otherwise, to any surface areas 
within, on, under, or adjacent to, any struc- 
ture in such a manner that the pesticide will 
adhere to surfaces and remain toxic to 

. household pests and rodents or other pests 
for an extended period of time. 

(9) "Continuing education units" means units 
of non-credit education awarded by the Di- 
vision of continuing education. North 
CaroUna State University or comparable 
educational institution, for satisfactorily 
completing course work. 

(10) "Continuing certification unit" means a 
unit of credit awarded by the Committee 
upon satisfactory completion of one clock 
hour of instruction in MVf an approved 
course »f study (one CCU is approximately 
equal to one tenth CEU of approved course 
work). 

(11) "Deficient soil sample" shall mean any soil 
sample which, when analyzed, is found to 
contain less than 25 percent of the 
termiticide apphed by a licensee which 
would be found if the termiticide had been 
apphed at the lowest concentration and 
dosage recommended by the labeling. 

(12) "Department" means the Department of 
Agriculture of the State of North Carolina. 

(13) "Disciplinary action" means any action 
taken by the Committee as provided under 
the provisions of G.S. 106-65.28. 

(14) "Division" means the Structural Pest 
Control Division of the Department of Ag- 
riculture of the State of North Carolina. 

(15) "Enclosed space" means any structure by 
whatever name known, including household 
structures, commercial buildings, ware- 
houses, docks, vacant structures, and places 
where people congregate, such as hospitals, 



schools, churches, and others; railroad cars, 
trucks, ships, aircraft, and common carriers. 
It shall also mean vaults, tanks, chambers, 
and special rooms designed for use, being 
used, or intended to be used for fumigation 
operations. 

(16) "Enforcement agency" means the Struc- 
tural Pest Control Division of the Depart- 
ment of Agriculture of the State of North 
Carolina. 

(17) "EPA" means the Environmental Pro- 
tection Agency of the United States Gov- 
ernment. 

(18) "EPA registration number" means the 
number assigned to a pesticide label by 
EPA. 

(19) "Elammable pesticidal fog" means the fog 
dispelled into space and produced: 

(a) from oil solutions of pesticides fmely 
atomized by a blast of heated air or ex- 
haust gases from a gasoUne engine, or 
from mixtures of water and pesticidal oil 
solutions passed through a combustion 
chamber, the water being converted to 
steam, which exerts a shearing action, 
breaking up the pesticidal oil into small 
droplets (thermal fog); or 

(b) from oil solutions of pesticides which are 
forced through very narrow space by 
centrifugal force and atomized as they are 
thrown off into the air (mechanical or 
cold fogs). 

(20) "Fog or fogging" means micron sized 
particles of pesticide(s) dispersed by means 
of a thermal generator. 

(21) "Fumigation" means the use of fumigants 
within an enclosed space, or in, or under a 
structure, in concentrations which may be 
hazardous to man. 

(22) "Fumigation crew" or "crew" means per- 
sonnel performing the fumigation operation. 

(23) "Fumigation operation" means all details 
prior to apphcation of fumigant(s), the ap- 
plication of fumigant(s), fumigation period, 
and post fumigation details as outlined in 
these Rules and Regulations. 

(24) "Fumigation period" means the period of 
time from application of fumigant(s) until 
ventilation of the fumigated structure(s) is 
completed, and the structure or structures 
are declared safe for occupancy for human 
beings or domestic animals. 

(25) "Fumigator" means a person hcensed un- 
der the provisions of G.S. 106-65. 25(a)(3) 
or certified under the provisions of G.S. 
106 65.35(b)(1) G.S. 106-65. 25(e)(1) to en- 
gage in or supervise fumigation operations. 



1570 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



PROPOSED RULES 



(26) "Gas-retaining cover" means a cover 
which will confine fumigant(s) to the 
space(s) intended to be fumigated. 

(27) "General fumigation" means the applica- 
tion of fumigant(s) to one or more rooms 
and their contents in a structure, at the de- 
sired concentration and for the necessary 
length of time to control rodents, insects, or 
other pests. 

(28) "Household" means any structure and its 
contents which are used for man. 

(29) "flousehold pest control" means that 
phase of structural pest control other than 
the control of wood-destroying organisms 
and fumigation and shall include the appli- 
cation of remedial measures for the purpose 
of curbing, reducing, preventing, controlling, 
eradicating, and repelling household pests 
and rodents. 

(30) "Inactive license" shall mean any struc- 
tural pest control license held by an individ- 
ual who has no employees and is not 
engaged in any structural pest control work. 

(31) "Infestation of a specific organism" means 
evidence of past or present activity by that 
organism, visible in, on, or under a structure, 
or in or on debris under the structure. 

(32) "Inspection for a specific wood-destroying 
organism" means the careful visual exam- 
ination of all accessible areas of a building 
and the sounding of accessible structural 
members to determine the presence of and 
the damage by that specific wood-destroying 
organism. 

(33) "Inspector" means any employee of the 
Structural Pest Control Division of the De- 
partment of Agriculture of the State of 
North Carolina. 

(34) "Jobs not meeting the minimum require- 
ments of these Rules and Regulations" 
means any job that is not treated in accord- 
ance with the minimum requirements as 
herein set forth. 

(35) "Licensed structural pest control opera- 
tion," or "pest control operation," or "op- 
erator," or "licensed operator" means any 
person licensed under the provisions of G.S. 
106-65. 25(a) or unlicensed who, for direct 
or indirect hire or compensation is engaged 
in the business of controlling, destroying, 
curbing, mitigating, preventing, repelling, 
offering advice on control methods and 
procedures, inspecting and identifying 
infestations and populations of insects, 
rodents, fungi, and other pests within, under 
and on structures of any kind, or the nearby 
surrounding ground areas or where people 



may assemble or congregate including work 
defined under G.S. 106-65.24(23). 

(36) "Liquefied gas aerosol" means the spray 
produced by the extreme rapid volatilization 
of a compressed and liquefied gas, to which 
has been added a non-volatile oil solution 
containing a pesticide. 

(37) "Non-commercial certified applicator" 
shall mean any certified applicator not em- 
ployed by a licensed individual. 

(38) "Open porch" means any porch without 
fiU in which the distance from the bottom 
of the slab to the top of the soil beneath the 
slab is greater than 12 inches. 

(39) "Percolation" (as used m Rule .0503(c)(2) 
of Section .0500 this Chapter ) means the 
leakage or movement of a pesticide from the 
initial point of application by the action of 
the water. 

(40) "Residential structure" means any struc- 
ture used as a permanent dwelling such as a 
single- or multi-family home, a condomin- 
ium or townhouse or an apartment. 

(41) "Secretary" means the Secretary to the 
North Carolina Structural Pest Control 
Committee. 

(42) "Ser%'ice vehicle" means any vehicle used 
to transpK^rt the licensee or certified 
appUcator or serviceman and/or their equip- 
ment and pesticides used in providing struc- 
tural pest control services. 

(43) "Slab-on-ground" means a concrete slab 
in which all or part of that concrete slab is 
resting on or is in direct contact with the 
ground immediately beneath the slab. 

(44) "Sohd masonry cap" means a continuous 
concrete or masonry barrier covering the 
entire top, width and length, of any wall, or 
any part of a wall, that provides support for 
the exterior or structural parts of a building. 

(45) "Space spray" means any pesticide re- 
gardless of its particle size, which is apphed 
to the atmosphere within an enclosed space 
in such a manner that dispersal of the pesti- 
cide particles is uncontrolled. Pesticidal fogs 
or aerosols, including those produced by 
thermal-aerosol generators (fogging ma- 
chines), shall be considered space sprays. 

(46) "Spot fumigation" means the application 
of a fumigant to a localized space or 
harborage within, on, under, outside of or 
adjacent to, a structure for local household 
pest or rodent control. 

(47) "Spot surface residual spray" means the 
apphcation of pesticidal spray directly to a 
surface and only in specific areas where nec- 
essary and in such a manner that the pesti- 
cidal material wiU largely adhere to the 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



1571 



PROPOSED RULES 



surface where applied and will remain toxic 
to household pests or rodents or other pests 
for which applied for an extended period of 
time. 

(48) "Structure" means all parts of a building, 
whether \acant or occupied, in all stages of 
construction. 

(49) "Structural pests" means all pests that oc- 
cur in any type of structure of man and all 
pests associated with the immediate environs 
of such structures. 

(50) "Sub-slab fumigation" means the applica- 
tion of a fumigant below or underneath a 
concrete slab and is considered spot 
fumigation. 

(51) "Telephone answering service location" 
means any location used for the sole pur- 
pose of receiving telephone messages. 

(52) "Termiticide(s)" (as used in Rule .0503, 
Subterranean Termite Control, and Rule 
.0505, Subterranean Termite Prevention) 
means those pesticides specified in Rule 
.0502, Pesticides for Subterranean Termite 
Prevention and'or Control. 

(53) "To use any pesticide in a manner incon- 
sistent with its labeling" means to use any 
pesticide in a manner not permitted by the 
labeling. Provided that, the term shall not 
include: 

(a) applying a pesticide at any dosage, con- 
centration or frequency less than that 
specified on the labeling; 

(b) applying a pesticide against any target pest 
not specified on the labeling if the appli- 
cation is to the site specified on the label- 
ing, unless the EPA has required that the 
labeling specifically state that the pesticide 
may be used only for the pests specified 
on the labeling; 

(c) employing any method of application not 
prohibited by the labeling. 

(54) "Type of treatment" means the method 
used to apply a pesticide formulation to a 
specific location. 

(55) "Unauthorized personnel" means any in- 
dividual or individuals not given specific au- 
thorization by the Hcensee or certified 
applicator to areas to which access is re- 
stricted by these regulations. 

(56) "Under dixect supervision of means the 
act or process whereby application of a pes- 
ticide is made by a competent person acting 
under the instructions and control of a 
hcensee or certified appUcator who is re- 
sponsible for the action of that person and 
who is available if and when needed, even 
though such licensee or certified applicator 



is not physically present at the time and 
place the pesticide is apphed. 

(57) "Waiver" means a standard form pre- 
scribed by the Committee which will, when 
completed correctly, permit the licensee to 
deviate from or omit one or more of the 
minimum treatment methods and proce- 
dures for structural pests which are set forth 
in the Committee rules, regulations, defi- 
nitions and requirements. 

(58) "Wood-destroying insect report" means 
any written statement or certificate issued, 
by an operator or his authorized agent, re- 
garding the presence or absence of wood- 
destroying insects or their damage in a 
structure. 

(59) "Wood-destroying organism" is an 
organism such as a termite, beetle, other in- 
sect, or fungus which may invade, inhabit, 
devour, or destroy wood or wood products 
and other cellulose material found in, on, 
under, in contact with, and around struc- 
tures. 

(60) "Wood-destroying organism report" 
means any written statement or certificate 
issued, by an operator or his authorized 
agent, regarding the presence or absence of 
wood-destroying organisms or their damage 
in a structure. 

Statutory Authority G.S. 106-65.29. 

SECTION .0300 - LICENSING .\ND 
CERTIFIC.VTION 

.0302 APPLICATION FOR LICENSES AND 
CARDS: EXAMIN.\TION 

(a) Application for hcenses under the pro- 
visions of G.S. 106-65. 26(a) and (c): 

(1) AppUcation for examination shall be on 
a regular form prescnbed by the Division. 
All examinations shall be maintained and 
administered by the Committee secretary. 
The Committee may review the examina- 
tions and make recommendations regard- 
ing changes in same. 

(2) Upon approval of the apphcation for ex- 
amination, the Committee secretary shall 
notify the applicant of said approval and 
provide the necessar>' form(s) for the ap- 
pUcant to prc-register for the examination 
as required in Pailo .0302(c). Paragraph 
(c) of this Rule. 

(3) Apphcations to take the examination 
shall be either typed or printed in ink and 
sworn to before a notary- public or some 
other official authorized by law to admin- 
ister oaths. 



1572 



6:21 NORTH CAROLINA REGISTER Eebruarv 3, 1992 



PROPOSED RULES 



(4) A clear full-face, head, and shoulder 
photograph of the apphcant, taken within 
the preceding 12 months of the date of 
application, and not less than two and 
one-half inches square, shall be attached 
to the application. 

(5) All applications to take the examination 
shall be retained by the office of the 
Committee secretary. All documents filed 
in support of an application shall be kept 
by the office of the Committee secretary; 
provided, however, that the Committee 
may at its discretion permit such docu- 
ments to be withdrawn upon substitution 
of a true copy. All examinations shall 
remain the property of the Committee. 

(6) An applicant who gives or receives un- 
authorized assistance during an examina- 
tion shall be dismissed from the 
examination and his markings or results 
shall be voided and said applicant's ex- 
amination fee shall be forfeited. Such 
applicant shall not be permitted to take a 
re-examination for a period of six months 
from the date of the examination. 

(7) No person shall be admitted to the ex- 
amination room except members of the 
Committee, the attorney for the Commit- 
tee, the examining personnel, employees 
of the Structural Pest Control Division, 
and the applicants for hcenses. 

(8) .Any applicant making a score of 70 per- 
cent or more on any license 
examination(s) shall be issued a license in 
that phase(s) of structural pest control af- 
ter making proper apphcation therefor. 

(9) The applicant shall furnish such infor- 
mation as the committee may require to 
establish that said apphcant p>ossesses 
qualifications as specified in G.S. 
106-65.26 of the act for the particular 
hcense(s) which he seeks. The Commit- 
tee, or its authorized representatives, may 
make such investigations as it deems nec- 
essary with respect to the applicant's 
qualifications. 

(10) All applicants passing the examination(s) 
for Ucenses shall apply for said licenses 
within six months from the date on which 
the examinations were passed. If such 
apphcants fail to make application for said 
licenses, within the specified period, such 
applicants shall be required to take and 
satisfactorily pass re-examinations cover- 
ing phases of structural pest control work 
for which licenses were applied before said 
Hcenses are issued. 



(11) If an applicant [within 60 days after no- 
tification that he has failed an 
examination] requests to review the 
exainination(s), the Division shall allow 
such review during the earliest possible 
regular review session, 
(b) Application for certified applicator's iden- 
tification card under the provisions of G.S. 
106-65. 26(a) and (b): 

(1) Apphcations filed pursuant to G.S. 
106-65. 26(a) and (b) shall be on a regular 
form prescribed by the Division. 

(2) An applicant for a certified applicator's 
identification card in any phase of struc- 
tural pest control shall furnish such infor- 
mation as the Committee may require to 
establish that said applicant possesses 
qualifications as specified in G.S. 
106-65.26 of the act for the particular cer- 
tified applicator's identification card which 
he seeks. The Committee or its author- 
ized representatives, may make such in- 
vestigations as it deems necessarv' with 
respect to the applicant's qualifications. 

(3) All applications for certified applicator's 
identification cards under the provisions 
of G.S. 106-65. 26(a) and (b) shall be re- 
tained by the office of the Committee 
secretary. /Vll documents filed in support 
of an apphcation shall be kept by the of- 
fice of the Committee secretary; provided, 
however, that the Committee may at its 
discretion permit such documents to be 
withdrawn upon substitution of a true 
copy. .'VU examinations shall remain the 
property of the Committee. 

(4) Any applicant making a score of 70 per- 
cent or more on the core certification ex- 
amination and on any certified 
applicator's examination(s) shall be issued 
a certified applicator's identification card 
in that phase of structural pest control af- 
ter making proper application therefor. 

(5) All apphcants passing the e.xamination(s) 
for certified apphcator's identification 
cards shall apply for said cards within six 
months from the date on which the ex- 
aminations were passed. If such apph- 
cants fail to make apphcation for said 
certified apphcator's identification cards 
within the specified period, such apph- 
cants shall be required to take and satis- 
factorily pass re-examinations covering 
phases of structural pest control work for 
which certified applicator's identification 
cards were apphed before said cards are 
issued. 



6:21 yORTH CAROLINA REGISTER February 3, 1992 



1573 



PROPOSED RULES 



(6) Upon receipt of the application for ex- 
amination, the Committee secretary- shall 
provide the necessary' forms for the appli- 
cant to pre-register for the examination as 
required in Ruli? .0302(oj. Paragraph (c) 
of this Rule. 

(7) 44^ik» MM2 Subparagraphs (a)(2), (3), (5), 
(6), (7), (12) and (13) of ttus S e ction Rule 
shall also apply to all applicants for certi- 
fied applicator's identification cards. 

(c) Pre-registration for license and certified 
applicator examination applicants: 

(1) AU applicants for the license and or certi- 
fied applicator's examination(5) shall pre- 
register with the Committee secretary for 
said examination(s) no less than ten days 
prior to the date of the exammation. 

(2) Applicants who fail to pre-register shall 
not be permitted to take the examination. 

(3) Pre-registration shall include a properly 
completed application for examination. 

(d) Frequency of examination by license ap- 
pUcant limited: 

(1) An applicant who initially fails to pass the 
license examination may retake the exam- 
ination at any subsequent regularly 
scheduled examination. 

(2) An applicant who fails to pass the second 
license examination shall wait a minimum 
of three montho examinations between 
each subsequent examination: except 
that, in the event of a death of a licensee 
the applicant intending to succeed the de- 
ceased licensee may take the examination 
a third time prior to the first three month 
examination waiting period. 

Statutory Authority G.S. 106-65.29. 

.0313 INFORMATION ON REGISTERED 
TECHNICIAN'S IDENTIFICATION 
CARDS 

(a) A registered technician's identification card 
shall contain, but not be limited to, the foUovs'ing 
information: 

( 1 ) name of registrant: 

(2) name of licensee or employer; 

(3) name of Licensee's company; 

(4) address of licensee's company; 

(5) license number and phase(s) of licensee; 

(6) age, \s eight, height, color of hair and eyes 
of registrant: 

(7) job classification of card holder: 

(8) issuance date, expiration date and license 
year covered b\' card. 

(b) The registered teclmician's identification 
card and the Ucense of the employer of the card 



holder shall bear the same license number and 
License phase(s). Each registered technician's 
identification card shall bear only one license 
number, one company name, and not more than 
three license phases. 

(c) A licensee or non-commercial certified 
applicator applying for the issuance or renewal 
of a registered technician's identification card for 
his employee shall certify to the Division that the 
employee has completed employee training ap- 
pro\ed by the Committee in structural pest con- 
trol work. 

(d) In the event the oommittoo Committee ap- 
proves employee training materials produced by 
the Di\ision, such materials shall be purchased 
for each home office and by at least one non- 
commercial certified apphcator at each business 
location at a cost determined by the committoo; 
Committee; provided, however, a liconooo wh» 
in licensees performing work under the structural 
pest control license of another and non- 
commercial certified applicators who are not en- 
gaged in structural pest control shall not be 
required to purchase the training materials. 

(e) Training materials shall be made available 
for inspection dunng regular busmess hours upon 
request by the Dhision. 

Statutmy Authority G.S. 106-65.29. 

.0318 CHANGE IN ST.\TCS OF EICENSEE 
AND/OR CERI IFIED APPLIC.VIOR 

fri^ \\'h e n thoro it* a change m the C ' tatuo &f a 
licuni ' L ' L' ift relation Ve- tl» company ef- branch 
offico. t4» licon '. o numb e r given to tfee origmal 
hconooe ef a company may l*e retained W t4»t- 
company &f branch otfice. at- Ae discretion e4^y** 
Committee. aft4 upon written request V i ithin taa 
days fvf such change. 

(-b^ It shall be the responsibility of each Licensee 
and certified apphcator to inform the committ ee 
Conimittee secretars, in wnting, on a form pre- 
scnbed by the Di\ision. and within 10 days, of 
any change in employment status, including but 
not limited to: 

(1) change from one emplo\er to another, 

(2) change of business address, 

(3) change of company name, 

(4) change of telephone number, 

(5) sale of business, 

(6) discontinuance of business, 

(7) change of business location, 

(8) change of resident agent. 

Statutory Authority G.S. 106-65.29. 

.0329 EXPIRATION OF LICENSES .\ND 
CARDS 



1574 



6:21 NORTH CAROLINA REGISTER Eebnmry 3. 1992 



PROPOSED RULES 



(a) Any licensee whose license expires and is 
subject to reexamination pursuant to G.S. 
106-65. 31(b) shall meet all the requirements for 
licensing prescribed in G.S. 106-65.26 and Rule 
.0302(a) and (c] of this Section. 

(b) Any certified applicator whose certified 
applicator's identification card expires and is 
subject to reexamination pursuant to G.S. 
106-65.3 1(a) shall meet all the requirements for 
certification prescribed in G.S. 106-65.26 and 
Rule .0302(b) and (c) of this Section. 

Statutory Authority G.S. 106-65.29. 

SECTION .0400 - PLBIJC SAFETY 

.0406 SPIEL CONTROL 

Licensees and certified applicators shall main- 
tain spill control materials and'or equipment at 
aU locations used to store pesticides and on aU 
service \chicles used to transport pesticides. 

Statutory Authority G.S. 106-65.29. 

SECTION .0600 - WOOD-DESTROYING 
ORGANISMS AGREEMENTS 

.0601 AGREEMENTS 

(a) Before any work treatment is started, the 
licensee or his authorized agent shaU be ro ' jpon 
oiblo fof executing execute, and furnish to the 
prope^t\^ owner or his authorized agent, a wntten 
Qgroomont with, aft4 proposal informing m detail, 
the property owner or his authorized agent, in 
detail, as to the type and quality of work that is 
to be performed, under Vb* agreement. The 
written proposal shall contain that information 
specified in Rule .0605 of tliis Section and, upon 
written acceptance by the property owner or au- 
thonzed agent, shall suffice as a written agree- 
ment. 



(b) The licensee or his authorized agent shall. 



within 14 days of beginning a treatment, execute 
a wntten agreement with the property owner or 
his authon/.ed agent in conformance with Rule 
.0605 ot this Section. Dunng the J_4 day pcnod. 
the Division will use the wntten proposal as its 
standard of enforcement. Following the 14 day 
period and in the absence of an executed wntten 
agreement, the Division will apph' Rule .0503, 
.0505 or .0506 of this (Chapter, as applicable, as 
its standard of enforcement. 

Statutory Authority G.S. 106-65.29. 

.0602 WOOD-DESTROYING INSECT AND 
OTHER ORG.4N1SM REPORTS 



(a) Bot' . voen September +t 1^87 afi4 Januap ; ' 3-^ 
19 8 8, aay /Vny written statement as to the pres- 
ence or absence of wood-destroying insects or 
their damage in buildings or structures for sale 
shall be on either IIUD Fonn -rver 92053 Bf the 
WDIR 100. As »f FobruuP r r ^ W8^ ©ftiy 
WDIR +00 sfeatt be accepted f»f ««e by Ae 
Committoo. Incompl e t e An incomplete or inac- 
curate Wood- Destroying Insect Reporti i Infor- 
mation Report shall not be acceptable and the 
issuance of such reports a report is grounds for 
disciplinary action by the committeo. Commit- 
tee. No Wood- Destroying Insect Report o Infor- 
mation Report or Wood- Destroying Organism 
R e ports Report shall be issued before an in- 
spection of the building or structure is made. 
Each Wood- Destroying Insect Information Re- 
port issued by a licensee shall be kept in the files 
of said licensee and made available at- the for in- 
spection upon request of the enforcement agency, 
fof inr . pection. Division. 

(b) If during the inspection of a structure, a 
licensee or his authorized agent finds Uve subter- 
ranean termites or visible evidence of past or 
present infestation of subterranean termites (such 
as tubes, damage, cast wings, infested wood 
scraps or other cellulose materials, etc.) in the 
structure and there is no visible evidence that said 
structure has been treated for subterranean 
termites, the hcensee shall treat said structure for 
subterranean termites prior to the issuance of a 
Wood- Destroying Insect Report on the structure 
which states that the stnicture is free from sub- 
terranean termites. 

(c) A licensee, certified applicator or registered 
technician shall not remo\e or destroy any 
wood-destroying organism evidence discovered 
in, on. under or in or on debns under a structure 
inspected pursuant to this Rule except as re- 
quired by Paragraph (b) of this Rule. 

Statutory Authority G.S. 106-65.29. 

.0603 WAIVERS 

(a) If there are any deviations or omissions 
from the minimum requirements for the control 
and/or prevention of wood-destroying organisms 
or pests, as hereinbefore set forth, each require- 
ment omitted shall be fuUy explained, in writing, 
prior to any work being done, on the waiver 
fomi(s) prescribed by the Committee, bear tlte 
written appro' i dl ef t4*e property csner ef h» 
authoni'ed ag e nt, &ft4 r . hall be mad e a- permanent 
prtrt »f y*e wntten agreement. 

(b) The waiver must be prepared in accordance 
uilh Rule .(1601 of this Section and, upon wntten 
acceptance by the property owner, shall become 
a permanent part of the written agreement. 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



1575 



PROPOSED RULES 



(c) fb^ Incomplete and retroactive waiver forms 
shall not be accepted unless approved by the 
Committee or its authorized agent. 

Statutory Authority G.S. 106-65.29. 

.0604 WOOD-DF.STROYING ORGAMSMS 
RECORDS 

(a) A duplicate of each written proposal for the 
control ot' wood-destroNinu oruanisms and waiver 
(_if applicable) shall be kept by the licensee for a 
minimum of six months from the date executed 
bv the licensee or his authony.cd at;ent. 



(b) (^ A duplicate of each wntten agreement 
and wai\'er (if applicable), including wood 
diJt: i troying inaect roporta ef V i ood d e stroying 
organinm reports, for the control and or pre- 
vention of any wood-destroying organism shall 
be kept by the hccnsee for a minimum of two 
years beyond the expiration date of the written 
agreement. The duplicate of each written agree- 
ment shall contain, in addition to the information 
specified under Rule .0605(a) or Rule .0605(d) 
of this Section, the foUowiiig: 

(1) HPA approved brand name of pesticide 
used; and 

(2) Information required by EPA. 

(c) A duplicate of each wood-destroving insect 
or wood-destro\ing organism report shall be kept 
bv the licensee for a mmimum of two vears be- 
vond the date of issuance. 



(d) fb^ Non-commercial certified applicators 
shall maintain the following records for two years 
beyond the last date of treatment: 

(1) EPA approved brand name of aU pesti- 
cides used; 

(2) Target pest; 

(3) Site of application; 

(4) Date of application; and 

(5) Infonnation required by EPA. 

Statutory Authority G.S. 106-65.29. 

.0605 CONTRACTl AL AGREEMENTS FOR 
VVOOD-DESTROMNG ORGANISMS 

(a) All agreements for the control and or pre- 
vention of wood-destroying organisms in existing 
structures shall be in wnting A copy »f A# writ 
teft agrooment aft4 V i ais-jr ftf applicable) partain 
iftg te- sai4 truatmL ' nt( ' ; i ) shall be presented to aft4 
fumi '' h e d tl+e property owner ef fe uuthon/ed 
ag e nt, fof acceptanc e , and shall clearl)' set forth 
&f and include the following: 

(1) Date property was inspected and full 
name of the inspector: 

(2) Exact location of property inspected 
and/ or treated; 



(3) Complete name and address of the prop- 
erty owner or his authorized agent; 

(4) Complete name and address of the 
licensee; 

(5) License number and phase(s) of the 
licensee and fuU name of company 
licensee represents; 

(6) Signature of licensee or his authorized 
agent; 

(7) For existing structures, the written agree- 
ment shall include a foundation diagram 
of the structure(s) or portions of such 
structure(s) inspected. The diagram shall 
clearly indicate and make fuU disclosure 
of the location of individual water sources, 
any visual e\idence of wood-destroying 
organism infestation, whether it be active 
or inactive, and visibly damaged timbers; 

(8) The date upon which the written agree- 
ment is entered into and the period of 
time covered by the written agreement; 

(9) The written agreement must clearly indi- 
cate, by complete not abbreviated com- 
mon name(s), the wood-destroying 
organism(s) to be controlled and/or pre- 
vented, and covered under the written 
agreement; 

(10) \\Tiether or not reinspections are to be 
made and, if so, approximate time interval 
between, and renewal fees for same; 

(11) Conditions under which retreatments wiU 
be made; 

(12) Total price to be charged for treatment 
service, and for repairs or excavations, 
where such are to be performed; 

(13) The written agreement, waiver (if appli- 
cable) and Wood- Destroying Insect Re- 
port or Wood- Destroying Organism 
Report, shall not show or include the ad- 
dress and telephone number of any 
licensee's representative or employee other 
than the address and telephone number 
of those specitied in Pail e .0605 Subpara- 
graphs (a)(3), (4), and (5) of this Section; 
Rule; 

(14) Any licensee or business entity advertis- 
ing to be bonded shall advise each cus- 
tomer, in writing, in the proposal, whether 
or not the contract or written agreement 
will be covered by a bond of any type; 

( 1 5) If the performance of the work is guar- 
anteed by a bond, the obhgation of the 
bond shall set forth specifically such items 
as necessary retreatments, timber replace- 
ments, etc., in wording identical to that in 
the bond itself: 

(16) Rule .0501(a) of S e ction Mm this 
Chapter shall also be followed. 



1576 



6:21 NORTH CAROLINA REGISTER Eebruary 3, 1992 



PROPOSED RULES 



(b) A structure or structures co\'cred by a con- 
tract for wood-destroying organism{s) treatment 
shall not knowingly be placed under an addi- 
tional contract for the same treatment while the 
first contract is still in effect. 

(c) When periodic reinspections or retreatments 
are specified in written agreements for the control 
or prevention of wood-destroying organisms, the 
licensee shall issue to the property owner or his 
authorized agent, after each reinspcction or re- 
treatment, a signed report of each rcinspection 
or retreatment showing the condition of the 
property with respect to the presence or absence 
of wood-destroying organisms. A record of such 
reinspections and retreatments shall be kept in 
the file of the licensee. Such reports shall be 
subject to inspection by the enforcement agency 
or committee. 

(d) All agreements for the trocitmont. e* control 
and or prevention of i . ubtorranijim tormito ', e* 
other wood-destroying orguni j. m organisms in 
buildings under construction shall be in wnting 
A copy »f t4*e oxoculod written agroomont fxM^ 
tuining te •«+4 treat mL ' nt(!i) f . hall l**» pre '. ontod t» 
aft4 fumii ' hed ^kt» property owner t»f fe author 
h^ agent , fof acceptance, and shall clearly set 
forth and include the following: 

(1) Date of fmal treatment and period of time 
covered by the written agreement; 

(2) Exact location of the treated property; 

(3) Complete name and address of the prop- 
erty owner or his authorized agent; 

(4) Complete name and address of the 
licensee; 

(5) License number and phase(s) of the 
licensee and fuO name of company 
licensee represents; 

(6) Signature of bcensec or his authorized 
agent; 

(7) The written agreement must clearly indi- 
cate, by complete not abbreviated com- 
mon name(s), the wood-destroying 
organism(s) to be controlled or prevented, 
and covered under the written agreement; 

(8) Whether or not reinspections are to be 
made and if so, approximate time interval 
between, and renewal fees, if any, for 
same; 

(9) Conditions under which retreatments wUl 
be made; 

(10) Total price to be charged for treatment 
ser\'ice; 

(11) Any licensee or business entity advertis- 
ing to be bonded shall ad\ise each cus- 



tomer, in writing, in the proposal, whether 
or not the contract or written agreement 
win be covered by a bond of any type; 

(12) If the performance of the work is guar- 
anteed by a bond, the obligation of the 
bond shall set forth specifically such items 
as necessary retreatments, timber replace- 
ments, etc., in wording identical to that in 
the bond itself; 

(13) Rule .0604(a) of this Section shall also 
be followed. 

(e) If the licensee provides preventive 
treatmcnt(s) for subterranean tennites to a 
structure(s) for someone such as a builder or 
construction company who is constructing the 
buLlding(s) for someone else or with the purpose 
of offering the building(s) for sale, the licensee 
may enter into a single master agreement with the 
builder to provide the preventive treatment(s) for 
subterranean termites. This single master agree- 
ment shall include the following: 

(1) Complete name and address of the 
builder, or his authorized agent; 

(2) That information required in RuIog .0605 
Subparagraphs (d)(4), (5), (6), (7), (8), (9), 
(10), (11), (12), and (13) of this Section. 
Rule. 

(f) When a structure is treated under an agree- 
ment with a builder, the licensee shall: 

(1) Following completion of the treatment, 
and upon notification by the builder or 
buyer, issue a written agreement to the 
initial buyer. The written agreement is- 
sued to the buyer shall include the fol- 
lowing; 

(A) Complete name and address of the 
buUder, or his authorized agent as it ap- 
pears on the builder's agreement; 

(B) That information required in Rule ' , . 
Mf^ Subparagraphs (d)(1), (2), (3), (4), 
(5), (6), (7), (8), (9), and ( 1 1) of this See- 
tion. Rule. The buUder shall be issued 
a copy of any written agreement issued the 
buyer. 

(2) Maintain a record of each treatment per- 
formed on each structure to include the 
following information: 

(A) L-.xact location of the stmcture treated; 

(B) Date each treatment was performed; 

(C) The portion(s) of the structure treated. 

Statuton Authority G.S. 106-65.29. 



SECTION .0900 - DUTIES .\ND RESPONSIBILITIES OF LICENSEE 



.0902 UN ANCIAL RESPONSIBILITY 



6:21 NORTH CAROLINA REGISTER Eebiiiaiy 3, 1992 



1577 



PROPOSED RULES 



(a) Structural pest control licensees shall obtain and maintain financial responsibility by general li- 
ability insurance with operations in progress and completed operations included and minimum limits 
equal to or greater than the minimum limits outlined in Rul e .0W2 Paragraph (b) of this Section. Rule. 
Any hcensee subcontracting work shall also obtain owner's and contractor s protective insurance. 

(b) .Minimum limits: 

(1) Single limit: 

PropcrtN Damaae $100,000 Each Occurrence 

Bodilv injur.' " $300,000 Each Occurrence 

(2) Combined limit: $400,000 Each Occurrence 

(c) Each applicant for a license in any phase of structural pest control shall show evidence of his fi- 
nancial abilit\ to properly indemnify persons suffermg from the use or appUcation of pesticides in the 
form of a Certificate of Insurance, completed by the insurance company with the licensee as the named 
insured and with the Division named as a certificate holder. 

(d) 1 he Certificate of Insurance shall clearly set forth the type of coverage, limits of liability, and any 
exclusions of the policy and shall ha\e attached a copy ef cither ondorvL ' inont G4- 04 4-^ »f GG 04- %Q- 
Bf other LUibL ' Oquent 'iV' ^ uicidL ' ef I iL - rbicidc j\pplioator Coverage" endor '. cmont approved h^ tfe^ North 
Carolina Department ef Inouranco ' i shich provid e r fof pollution aH4 contamination coverage, an 
endorsement which indicates that the policv pro\'ides coverage for any pollution and or contamination 
occumng as a rc^ult of the use or application of anv pesticide bv the name insured or anv employee 
of the named insured. 

(e) The license applicant shall be responsible for the submission of the Certificate of Insurance to the 
Division as specified in Rule .0002 Paragraphs (c) and (d) of this Section. Rule. No license shall be 
issued, re-issued, or renewed unless or until said Certificate of Insurance is received by the Di\ision. 

(f) The insurance policy(s) shall be with companies licensed, or otherwise approved to do business 
in North Carolina, by the NC Department of Insurance. The insurance policy shall be in full force and 
effect during the entire period co\ered by the license certificate. The license shall expire at expiration 
or upon reduction of the policies below minimum requirements or cancellation thereof Such expired 
hcense shall only be reinstated upon satisfactor*' proof from the hcensee that he has obtained the re- 
quired fmancial responsibility coverage. 

(g) ?4i<? licen^ ' ee rhall &w? at- l e ast 44 days notic e , h^ registered mail. t+* the Division a* a condition 
pr e c e d e nt ^ Ae cancellation bv t4*t» insurer, matenal chang e t*f cancellation l*v ti^e msur e d: and. tf such 
condition i^ fte4- satisfied, any CLUicellation t+f attempted cancellation shall be null, ' i oid. aft4 evf we- elfect. 
4ft addition. t4+e licensee shall gwe notice te- Ae Division ef afty reduction m- property damag e &f bodily 
injury coverage b e lo' i v Ae- minimum limits. The insurance required bv this Rule shall include the fol- 
lowing cancellation or polic\' modification clause: "Cancellation or anv matenal change m the policy 
adversely aft'ccting the interest of the State of North Carolina m such insurance shall not be etfecti\e 
until j^ da\s alter wntlen notification thereof to the North Carolina Structural Pest Control 
Duision." E\idence of compliance shall be included on anv Certificate ot Insurance. 

(h) No structural pest control license shall be issued to any person where there exists an outstanding 
and unpaid fmal judgement against said person resulting from any civil suit arising out ot damages 
suffered by a plaintiff as the resuU of a misuse of a pesticide by said person. rVny current and valid 
stmctural pest control license shall become null and void ISO days following the imposition of a fmal 
judgment awarding damages to any plaintiff resulting from a civil suit arising out ot losses suffered as 
the result of a pesticide misuse by the holder of said license unless the final judgment is settled in fuU 
within said ISO days. 

(i) The Committee may accept other evidence of financial responsibility. 

(j) Pv.ule .0902 Paragraphs (a) through (i) of this Rule shall not apply to any indi\idual holding an 
inactive hcense as defined by Rule .0102(29) of this Chapter. 

Slalutoty Authority G.S. 106-65.3'^. 

SECTION .1000 - TIME FOR FHTNG licensee or certified applicator for a violation of 

CO.MPL.VINTS Rule .0503. .11505 or .051)6 ot' tins Chapter after 

two years from the act or omission that occurred 

.1001 TIME FOR FILING COMPL.AIN'FS during the initial treatment or after the expuation 

(ai No disciplinary action agamst a Hcensee. of thtT structural pest control contract, whichever 

employee &f a lic e ns ee w c e rtifi e d applicator shall jj ,he kriefr e.xcept O^rt vhA respect to discipli 

be commenced against a licensee, employee of a f^^p^ action alleang a violation ef GrSr 



L\S 6:21 yORTH CAROLLYA REGISTER Ecbviiary 5, 1992 



PROPOSED RULES 



106 65.3Ni(a)( ' 1). tfee action f . hall W commoncod 
within twe- ycarr . from tb«» di 'i cov e p i ' hf i\rt% 
CommittL't' trf tbe allogod facts conotitutLng tiw 
fraud ef mioropropontation. latter. 

(b) Fxcept as specified in Paragraph (a) of this 
Rule, no disciplinary' action shall be commenced 
against a licensee, employee of a licensee or cer- ISdB-i*^. If a subpoena is issued at the request 

tificd apphcator after two years from the date of 
the discoyery of the act or omission that consti- 



promptly determine whether to grant or deny 
intervention and shall so notify the petitioner and 
all parties in wnting. 

(c) The authority of the Committee to issue 
or revoke subpoenas m preparation for, or in the 
conduct of, contested cases is governed by G.S. 



tutes a \iolation of these Rules or the .Structural 
Pest Control Act. 



of a party and not on the Committee's own mo- 
tion, that partN shall hear the cost of service. 



Statutory Authority G.S. 106-65.29. 

SECTION .1200 - ,\DMIMSTR.\TIVE 
HEARINGS: CONTESTED CASES 

.1201 NOTICE OF HEARING; ANSWER 

(a) The contents and manner of ser\'ice of no- 
tice of heanng in contested case shall be as pre- 



scribed in C3.S. 15nB-3S(b) and (c). 

(b) An\ part\ who has been served with notice 
of hearing may fde a wntten response as pre- 
scnbcd m G.S. 15(JB-38(d). 

Statutory Authority G.S. J 06-65.29; 150B-3S. 

.1202 RIGHT TO HEARING 

(a) Contested Cases. Disciplinary proceedings 
to eniorce the provisions of the North Carolina 
Structural Pest Control Law and 2 NCAC 34 are 
deemed to be "contested cases" within the 



meaning of G.S. 15IJB-2. and any person subject 
to such proceedings shaU be given notice and the 
opportumt\- to be heard. 

(b) Summary Suspension. Nothing \sithin 
Paragraph (a) of this Rule shall abndge the nght 
of the Committee to summanlv suspend a h^ 
cense, a certitied applicator's card or a registered 
technician s identiiication c:ird pnor to heanng 
pursuant to G.S. 15()B-3(c). 

Statutory' Authority G.S. 106-65.29; I50B-3S. 

.1203 LOCATION OF HEARING 

The location of the hearing in a contested case 
shall be as prescribed m G.S. 150B-38(e|. 



Statutory .Authority G.S. 106-65.29; I50B-38. 

.1204 DISCO\ ERY; IN\ ENTION; SLBPOEN.\S 

(a) Parties in a contested case may engage in 
disco\er\' pursuant to the pro\ isions of the Rules 
of Civil Procedure. G.S. 14-1. 



(b) 1 he intervention of persons not initiaUv 
parties to a contested case is go\emed by G.S. 
15()B-3S(f). Petitions or motions to intervene 
must be in wnting. The Committee shall 



Statutory Authority G.S. 106-65.29; 150B-3S. 

.1205 CONDI CT OF HEARING 

(a) Hearings in contested cases shall be con- 
ducted by a majoritN" of the Committee. The 
Chairman shall serve as presiding otTicer unless 
he is absent or disqualified, in which case the 
Vice-chairman shall preside. 1 learings shall be 
conducted as prescribed bv G S. 150B-40. 

(b) Disqualification. An affidavit seeking dis- 
qualification of any Committee member, if tiled 
in good faith and in a timeh' manner. wiU be 
ruled on bv the remaining members of the 
Committee. An aftida\it is considered tunely if 
it is tiled: 



( 1 ) Pnor to the hearing; or 

(2) As soon after the commencement of the 
hearing as the atfiant becomes aware of 
facts which ,gi\'e rise to his belief that a 
Committee member should be disquali- 
fied. 

the (c) I-\idence. The admission of e\idence in a 

hearing on a contested case shall be as prescribed 
in G.S. 150B-41. 

Statutory Authority G.S. 106-65.29; 150D-3S. 



.1206 DECISION OF BOARD 

(a) The form and content of 



the Committee's 



decision in a contested case shall be prescribed 
by G.S. 15(~B-42(a). and its decision shall be 
served upon the parties m a manner consistent 
with said statute. 

(b) The official record of the hearing in a con- 
tested case shall contain those items specitied in 
G.S. 15()B-42ib). 

Statutory .Authority G.S. 106-65.29; 150B-3S. 

TITLE 4 - DKPAR IMENT OF ECONOMIC 
AND COMML Nil V DE\ ELOP.MENT 



J\ otice is hereby gi\-en in accordance with G.S. 
150B-2I.2 that the .VC Dept. of Economic & 
Community De\'e/opment, Dtiision of Communitv 
Assistance intends to amend nde(s) cited as 4 
.VC.-IC 19L .0103, .0401. .0403. .0404. .0407, 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



1579 



PROPOSED RULES 



.0904, .1202. .1301 and to repeal rule(s) cited as 
4 NCAC I9L .070 1 -.0702 and .0705. 

1 he proposed effective dale of this action is May 
J, 1992. 

1 nstmctions on how to demand a public hearing: 
Written requests for a Public Hearing must be 
received by February 17, 1992. Written requests 
should be sent to Bob Chandler, Director, Division 
of Community Assistance. 1 307 Glenwood Ave- 
nue, Raleigh. NC 27605. 

IXeason for Proposed Action: This proposed 
action is necessary to enable the Division of Com- 
munity Assistance to facilitate the implementation 
of the Community Development Block Grant Pro- 
gram in aid of which the Rules were adopted. 

\^ omment Procedures: Oral or written com- 
ments will be accepted until March 3. 1992. 
Written comments should be sent to Bob 
Chandler, Director, Division of Community As- 
sistance, 1307 Glenwood Avenue. Raleigh. \C 
27605. Oral comments should be directed to Gail 
Brock (9/9) 733-2850. 

CFIAPTER 19 - Dl\ ISION OF COMMLMTY 
ASSISTANCE 

SUBCHAPTER I9L - NORTH CAROLINA 

COMMLNITY DEVELOF'MENT BLOCK GRANT 

PROGRAM 

SECTION .0100 - GENERAL PROVISIONS 

.0103 DEFINITIONS 

(a) "Act" means Title I of the Housing and 
Community Development Act of 1974, P. L. 
93-383, as amended. 

(b) "Applicant" means a local government 
which makes application pursuant to the pro- 
visions of this Subchapter. 

(c) "CDBG" means the State-administered 
Community Development Block Grant Pro- 
gram. 

(d) "Chief Elected Official" of a local govern- 
ment means either the elected mayor of a city or 
the chairman of a county board of commission- 
ers. 

(e) "Community Development Program" 
means the annual program of projects and activ- 
ities to be carried out by the appUcant with funds 
provided under this Subchapter and other re- 
sources. 

(f) "HUD" means the U.S. Department of 
Housing and Urban Development. 



(g) "Local Government" means any unit of 
general city or county government in the State. 

(h) Low-income families are those with a fam- 
ily income of 50 percent or less of median-family 
income. Moderate-income families are those 
with a farruly income greater than 50 percent and 
less than or equal to 80 percent of median-family 
income. For purposes of such terms, the area 
involved and median income shall be determined 
in the same manner as provided for under the 
Act. 

(i) "Low- and Moderate- Income Persons" 
means members of families whose incomes are 
within the income limits of low- and moderate- 
income families as defmed in Paragraph (h) of 
this Rule. 

(j) "Metropolitan Area" means a standard 
metropohtan statistical area, as established by the 
U.S. Office of .Management and Budget. 

(k) ".Metropolitan City" means a city as de- 
fmed by Section 102(a)(4) of the Act. 

(1) "Department" means the North CaroUna 
Department of Fconomic and Commuruty De- 
velopment. 

(m) "Project" means one or more activities 
addressing either: 

(1) community revitaUzation needs, or 

(2) economic development needs, or 
(4) do' i olopmijnt planning noods, e* 

(4) (3) development of aew aft4 innovativ e 
approachoo te affordable housing for per- 
sons of low- and moderate-income, or 
fS^ (4| urgent needs of the applicant, 
(n) "Recipient" means a local government that 
has been awarded a Community Development 
Block Grant and executed a Grant Agreement 
with the Department. 

(o) "Secretary" means the Secretary of De- 
partment of Economic and Community Devel- 
opment or his designee, 
(p) "State" means the State of North Carolina. 
(q) "Urban County" means a county as defmed 
by Section 102(a)(6) of the Act. 

Authority G.S. 143-323; 143B-10: 24 C.F.R. 
570. 4S9. 

SECTION .0400 - DISTRIBUTION OF FLNDS 

.0401 GENERAL 

(a) The Department shall designate specific 
dates for submission of grant appHcations under 
each category except for Urgent Needs. Urgent 
Needs applications may be submitted at any 
time, but other grant application submission 
dates will be announced by the Department at 
least 45 days before the date applications are due. 



15S0 



6:21 AORTH CAROLINA REGISTER February 3, 1992 



PROPOSED RULES 



(b) In cases where the Department makes a 
procedural error in the application selection 
process that, when corrected, would result in 
awarding a score sufficient to warrant a grant 
award, the Department may compensate that 
applicant with a grant in the next funding cycle. 

(c) Applicants can apply for funding under the 
grant categories of Community RevitalLzation, 
Economic Development, Dovolopmont Planning, 
Housing Development, Interim Assistance, Ur- 
gent Needs, and Community Investment for 
Economic Opportunity. Applicants shall not 
apply for Contingency funding. Contingency 
awards will be made to eligible applicants in 
Community Revitalization, Economic Develop- 
ment, and Housing Development a«4 Develop 
mont Planning categories. 

Authority G.S. 143-323: I43B-I0; 24 C.F.R. 
570.489. 

.0403 SIZE AND USE OF GRANTS 
MADE TO RECIPIENTS 

(a) There is no minimum grant amount which 
applicants may request or be awarded. Grant 
awards made to any one recipient shall not ex- 
ceed the following amount in each grant cate- 
gory: Community Revitalization - si* hundred 
thousand dollaro ( S6(in.000); - one million dollars 



($1.001), 000): Economic Development - six hun- 
dred thousand dollars ($600,000); Development 
Planning - five thouL . and dollars ($5,000); Hous- 
ing Development - two hundred fifty thousand 
dollars ($250,000) or funds available; Urgent 
Needs - F i eson hundred fifty thousand dollaro 
($750,000); -_ SIX hundred thousand dollars 
($600.000); Interim Assistance - seven hundred 
fifty thousand dollars ($750,000) for projects 
designated to be completed within 36 months 
from the award date, and four million dollars 
($4,000,000) for projects designated to be com- 
pleted within 18 months from the award date; 
Contingency - six hundred thousand dollars 
($600,000); and Community Investment for 
Economic Opportunity - seventy-five thousand 
dollars ($75,(300). Applicants shaU not have a 
project or combination of projects, under active 
consideration for funding which exceeds se' . en 
hundred fifty thousand dollars ($750,000) one 
million three hundred thousand dollars 
($1.300.000). except for Interim Assistance and 
Urgent Needs projects, 
(b) No local government may receive more 
than a total of GC i en hundred fifty thousand tk»l- 
hf% ($750,000) one million three hundred thou- 
sand dollars ($1.300.000) m CDBG funds in the 
period that the state distributes its annual HUD 
allocation of CDBG funds; except that local 



governments may also receive up to oovon hun 
dfe4 fifty thousand doUaro ($750,000) six hun- 
dred thousand dollars ($600,000) for a project 
that addresses Urgent Needs and up to four 
million dollars ($4,000,000,) in Interim Assist- 
ance funds in addition to other grants awarded 
during the same time period. 

(c) Community Revitalization applicants may 
spend no more than 15 percent of their total 
grant amount to fmance local option activities. 
Eocal option activities are ehgible activities which 
do not need to be directly related to proposed 
projects; however, job creation activities are not 
eligible local option activities. Local option ac- 
tivities will not be competitively rated by the 
Department, but may be limited to activities 
specified by the Department in application 
guideUnes and instructions; ho' i v e v e r, each local 
option project must show that: 

(1) At least fifty-one percent of the CDBG 
funds proposed for each activity wiU ben- 
efit low- and moderate-income persons; 
and 

(2) CDBG funds proposed for each activity 
win address the national objective of ben- 
efiting low- and moderate-income per- 
sons, or aid in the prevention or 
elimination of slums or blight. 

(d) Except fof Dcolopment Planning projects. 
Applicants may budget and expend no more than 
18 percent of the sum of funds requested and 
program income for administration and planning 
activities for each project. The Department may 
review grant requests to determine the reason- 
ableness and appropriateness of all proposed ad- 
ministrative and planning costs. 
Notwithstanding Rule .0910 of this Subchapter, 
grantees may not increase their approved plan- 
ning and administrative budgets without prior 
Departmental approval. 

(e) Applicants may spend CDBG funds in 
those areas in which the applicant has the legal 
authority to undertake project activities. 

(f) Grants to specific recipients will be provided 
in amounts commensurate with the size of the 
applicant's program. In determining appropriate 
grant amounts for each applicant, the Depart- 
ment may consider an applicant's need, proposed 
activities, aU proposed administrative and plan- 
ning costs, and abihty to carry out the proposed 
activities. 

Authority G.S. 143-323; I43B-I0; 24 C.F.R. 
570.4S9. 

.0404 GR.\NT C.VTEGORY ALLOCATION 

(a) Each program year funds will be reser\'ed 
for each grant category'. Eunds awarded to local 



6:2 1 NOR TH CAROLINA REGIS TER February 3, 1992 



1581 



PROPOSED RULES 



governments will be reserved for each grant cate- 
gory as follows: Up to five percent of the grant 
will be awarded for Housing Development aft4 
Do' i ulc^pmont Planning grants, ef which a max 
imum trf i i ixty th(m ' . . and dollar ; ' . (^60,000) mw 
!*«» a^sarded fof Dc i olopmont Plunnmg grant a. 
In addition, up to five percent will be set aside for 
Urgent Needs grants and Contingency awards 
and up to twenty percent will be set aside for 
Economic Development grants each year. The 
remaining funds will be distributed by the Divi- 
sion of Community Assistance to Community 
Revitalization grant apphcations. 

(b) Awards will be made for Interim Assistance 
from funds available in the state's allocation in 
accordance with Rule . 1 504 of this Subchapter. 

(c) Up to one milhon dollars ($1,000,000) of 
funds that are rocapturc recaptured from previous 
CDBG grants by the state r . huU may be used to 
make additional grants in the llousmg Develop- 
ment category. 

Authority G.S. / 43-323: 143B-I0; 24 C.F.R. 
570.489; 24 C.F.R. 570.491. 

.0407 GENER.M. .VF'PLICATION 
REQIIKEMENTS 

(a) Local governments arc required to submit 
applications in a manner prescribed by the De- 
partment in order to be considered for funding. 
Selection of applications for funding wiU be 
based primarily on information contained in the 
application; thus applications must contain suffi- 
cient information for the Department to rate 
them against the selection criteria. All apphcants 
are required to address their projects to one of 
the foUowing grant categories: Community 
Revitalization, Economic Dc\elopment, D e vt ' l 
opmunt Planning, Housing Development, In- 
terim Assistance, Urgent Needs, or Commumty 
Investment for Economic Opportunity. Apph- 
cants may apply in more than one grant category, 
apply for several projects in the same grant cate- 
gory, and have more than one project approved, 
providing the total grant apphcation and award 
does not exceed the maximum limits described in 
Paragraphs (a) and (b) of Rule .0403 of this Sec- 
tion. Applicants shaU submit an application that 
describes each project in detail. 

(b) Apphcations must be received by Depart- 
mental administrative offices in Raleigh before 
5:00 p.m. on the submission date or sent by mail 
and postmarked on the submission date. 

(c) Applicants must provide citizens with ade- 
quate opportunity for meaningful involvement in 
the development of Community Development 
Block Grant applications. The applicant shall 
provide adequate information to citizens and 



hold a pubhc hearing at the initial stage of the 
plarming process. Pnor to the submission of the 
application the apphcant must hold a second 
public hearing. Specific citizen participation 
guidelines are described further in Rule .1002 of 
this Subchapter. If the Department is aware of 
an apphcants failure to meet these citizen par- 
ticipation requirements, the Department may not 
rate the apphcation. 

(d) The Department may submit all CDBG 
applications and environmental review records 
as required by the National Environmental Pol- 
icy Act and the State Environmental Policy Act 
to the State Clearinghouse of the Department of 
Administration for review and comments. The 
Department may require each applicant to sub- 
mit a written description of how the apphcant 
proposes to address each comment received from 
the State Clearinghouse. 

(e) The apphcant shall certify to the Depart- 
ment that it will comply with all apphcable fed- 
eral and state laws, regulations, rules and 
Executive Orders. Copies of these federal and 
state requirements are available for public in- 
spection from the Division of Community As- 
sistance. 

(f) Apphcants must comply with the Housing 
and Community Development Act of 1974 as 
amended, all applicable federal and state laws, 
regulations, rules. Executive Orders and guide- 
lines issued by the Department. 

(g) Apphcation requirements described in this 
Rule .0407 do not apply to Urgent Needs grants, 
except for Paragraphs (a), (d). (f) and (g). 

(h) Apphcations submitted for Economic De- 
velopment projects under Section .1400 of this 
Subchapter may be rated or funded for up to 90 
days from the date of original submission. In 
addition, for applications that met the require- 
ments of .0407(c) and .1002 of this Subchapter 
at the time of original apphcation submission and 
in which the original project has not been 
changed significantly, there shall be no additional 
pubhc hearing requirements during the 90 days. 
The Department shaU detcrmme whether signif- 
icant changes have been made in a proposed 
project. 

(i) Apphcations for CDBG assistance under the 
Economic Development category must be sub- 
mitted with adec^uate e\idence that both public 
hearings were held in accordance with Rule 
.1002(b) of this Subchapter. 

Authority G.S. 143-323: 143B-I0: 42 L'.S.C.A. 
5304(a); 24 C.F.R. 570.489. 

SECTION .0700 - DEVELOPMENT PLANNING 
PROJECTS 



1582 



6:21 iXORTH CAROLINA REGISTER February 3, 1992 



PROPOSED RULES 



.0701 DEFINITION 

DL" i L'lopmL'nt Planning grunts are provided te 
ariL . i - jt le«ti govommL'nt ' j te dovt ' lop appropriato 

Planning grants ohall tn* w«»4 ©ftiy te support 
thos e udminiotrativo aH4 planning acti' i itioo tfeat- 
witt rL ' sult ift projocls that afe oligiblo fof CPDG 
funding ift tl*e futurL * . 

Authoritv G.S. 143-323; I43B-I0; 42 U.S.C.A. 
5301: 24 C.F.R. 570.489. 

.0702 ELIGIBILITY REQLIREMENTS 

f*^ Applications fof DuvoloprriL'nt Planning 
funds must show Aa4 a project dovolopod aft4 
fundod i» tfet» futuro as a rosult ©fa Dovolopmont 
Planning grant v4H- pnmarily bL ' OL ' fit low aft4 
modoratL' incom e persons. Applicants that- de 
fiet- mijut tfe requirement vriii m»t- t*e rated »* 
funded. 

ffe4 i\ppLicants shall hav e tth* capacity te- a4- 
minister a Community Do' i elopment Block 
Grant program. 4-he Department may oxamino 
tl*e follovi i ing areas *«■ detennine performanc e : 
f4-^ audit aft4 monitonng rindings ©«• pre' . i 
ously funded Community Devolopmont 
Block Grant programs, aftd Ae appU 
ccmt's fiscal accountability a* demon 
strated m other state e* federal programs 
»f local govemment financial reports; aft4 
(4f th<» fa4<* ©f expenditure ef funds aft4 a<5- 
compHshments m previously funded 
Community Development Block Grant 
programs. 
Applicants (4»t- sho' . v a k«?k- »f capacity wiii ftet- 
K* rat e d ©f funded. 

fef Appliccmts must certify t© tfee Department 
Aat development planning funds received witt 
r e sult m a future CDBG application submitted 
vi i ithin ^ months ©f t4te dati* ©f t^ development 
planning a ' ■ sard. I pon completion ©f a devel 
opment planning proj e ct, the Department may 
detemiine Aat- a resulting CDRG application i« 
»©<• feasible ©f appropriate. !«■ such cas e , tfee 
Department may waise tke rec]uireinent fof a» 
application » t4*e fift4 sentence ©f tte Section. 

Authority G.S. 143-323: I43B-I0: 42 U.S.C.A. 
5301: 24 C.F.R. 570.4S9. 

.0705 SELECTION CRITERI.V 

D e velopment Planning proj e cts vwii W evalu 
ated against other Development Planning project 
proposals. jVpplications wtli be evaluated aft4 
rated based ©«• the proj e ct d e sign. Three meas 
«fes wtH- l*e considered m evaluating project de- 
&igft fof a maximum score ©f 44>ft- 



(44 local commitment aft4 capacity; 

(-3) development feasibility; aft4 

f^ degre e t© which the project treats oovoro 

oommunity development noedo that hav e 

ft©t previously been addressed. 

Authority G.S. 143-323: 143B-10; 42 L.S.C.A. 
5304(a)(1): 24 C.F.R. 570.489. 

SECTION .0900 - GRANT ADMIMSTR.ATION 

.0904 ESCROW ACCOUNTS 

Recipients may draw down CDBG funds and 
deposit them into an escrow account for private 
property rehabditation in order to encourage the 
participation of small and minority owned con- 
tracting frrms. Recipients shall meet the re- 
quirements of HUD implementing regulations 
contained in 24 C' . F . R . 570. Escrow accounts 
may he established when direct giants ©f loans 
aw made t© owners ©f pnvale property fof the 
purpose ©f property rehabdrtation. Cash with 
drawals fof thk purpos e must he made under the 
foUo' i vmg terms; 
(4-) 44*e recipient must execute a writt e n grant 
©f loan agreement with the owner e4 the 
privat e property scheduled fof rehabilitation. 
f34 Recipients shall comply with Chapt e r t^^rV 
©f the General Statutes ©f North Carolina, 
entitled Tmsts aft4 Trustees. Under this 
Chapter recipients afer among other things, 
expreosly prolubited from maldng loans 
from aft escrow ticcount t© another account. 
f^ 44»e timing aft4 amount ©f a drawdown fof 
deposit iftto aft escrow account w4th respect 
t© aftv foaft ©f grant shall he subject t© the 
following lunitations; 
(a) Cash disbursements fo aa oscrovv account 
must meet the timine requirements set 
forth ift Paragraph fa^'©f R^^ 4W^ 
(h) 44*e deposit shall ft©t he made unless a 
construction contract has been executed 
hf the contractor selected t© 4© the reha 
bUitation work, affo ah work aft4 dis- 
bursem e nts m paym e nt ©f the contract afe 
scheduled t© he completed within 4^ 
months ©f less from the date e4 the de- 
posit. 
(e^ ¥he depos . it shall ft©t he made if it would 
result ift a» amount m the escrow account 
ift excess ©f disbursem e nt needs fof Hf* t© 
& months from the date ©f the depo '. it. 
(4f 44ie drawdown ©f CDBG funds fof 4e- 
posit iftt© aft escrow account shall ft©t 
exceed the CDBG funded portion ©f the 
construction costs ift the rehubililiition 
contract, af^ shall ft©t mclud e amounts 
fof contingencies ©f administration. 



6:21 NORTH CAROLINA REGISTER Febmmy 3, 1992 



I5S3 



PROPOSED RULES 



(+)• Such L'ooro' i V accountr . may afce includo 
c . upplL ' mL ' ntul fundr . noodud to complotg the 
rohubilitution work ' juoh a* commitiriL ' nts 
from a- rL'L'ouni;'.od lending in ii titution, e* » 
grunt »f lomi from other t^edoral, Stuto. »f 
local rohubilitation progrumfi »^ vveli ae cu ' ih 
providL ' d l*y y*# borrower. 44*e e scrow ae- 
count ■ - . hall fe>e ^ ' Oparatij aft4 diotinct from aH- 
other account'j maintained hf A# block 
grant recipient, aft4 be fof tfee 5*4* purpose 
&i depo '. iting rehabilitation loan ef grant 
funds pk» afty such supplemental funds. 

(-H I' ' - ' Crow accounts may be established »» aft 
individual ef master account basis. A mao 
tef account shall provid e fof adequate ae- 
counting t4 each owner's equity. 

(4) Interest income &fl- tl»e deposit ' i vhich i» Het 
t© be applied te- payment trf tfee contractor 
ef credited to the borrower ef a rehabili 
tut ion loan under the tenns ef the le*» e* 
grant agreement v^th the prop e rty o' l vner, 
shall be treated a^ program incom e ef^ the 
block grant recipient. 

Authoritv G.S. 143-323: 143B-I0; 159-7 through 
159-38; 24 C.F.R. 570.494; 24 C.F.R. 570.496; 
42 U.S.C.A.5304fb).(dJ.(e). 

SECTION .1200 - COMINGENCV PROJECTS 

.1202 ELIGIBII ITV REQL IREMENTS 

Applicants must meet the respective eligibility 
requirements (described in either Rule .0502, 



.mO^ JmOr .1302, or .1402) that relate to the 
type of project proposed by the applicant. 

Authoritv G. S. 143-323: I43B-I0; 24 C.F.R. 
570.489; 24 C.F.R. 570.496. 



SECTION .1300 



HOLSING DE\ELOPMENT 
PROJECTS 



.1301 DEFfNITION 

Grants under this category' will demonstrate 
Hew- aft4 innovati' i O approaches te- housing 
problems &f de\'elop affordable housing oppor- 
tunities for low- and moderate-income persons. 



Authoritv G.S. 
570.489. 

TITLE 10 



143-323; 143B-I0; 24 C.F.R. 



DEPARTMENT OF HLM.W 
RESOURCES 



lyotice is hcrebv given in accordance with G.S. 
I50B-2I.2 that^' the Social Sen-ices 
Commission Division of Facilitv Services intends 
to amend rule(sj cited as 10 .\CAC 3J .2801, 



.3401, .3403, .34/6 and .34/8; /O NCAC 4/1 
.0304, .0408, and .04/0; adopt rule(s) cited as 10 
NCAC 4/1 .04/1; repeal nde(s) cited as /O 
NCAC 3J .3405. 

1 he proposed effective date of this action is June 
/, /992. 

1 he public hearing will be conducted at /0:00 
a.m. on S/arch 4, /992 at the Disability Determi- 
nation Building. Room / , 322 Chapanoke Road, 
Raleigh. NC. ' 

JXeason for Proposed .Action: 

Rules in J^ NCAC 3J .2801, .340 1 , .3403, .3405, 
.34 1 6 and .34 1 8 - To repeal an unnecessary rule 
and amend others to reflect changes presented to 
the Jail Standards Task Force. 

Rule J_0 NCAC 411 .0304 - The amendment to this 
rule removes a restriction on the sharing of infor- 
mation when law enforcement agencies cooperate 
with departments of social services in the conduct 
of child protective sen'ices investigations. The 
amendment to the nde makes it consistent with 
current legislation. 

Rules J^ NCAC 411 .0408. .0410 and .0411 - These 
rules are being proposed J or amendment and 
adoption to strengthen t/ie initiati\-e regarding 
community child protection teams mandated by 
Executive Order n/42. The tides clarify expec- 
tations for record keeping and confidentiality 
which have been identified as problematic since the 
formation of the teams. T/ie nde on minutes sets 
forth the requirement that teams comply with G.S. 
/32-/-9, Open .\/eetings. 



Cc 



ommeni Procedures: Comments may be pre- 
sented in writing any time before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of this 
nde by calling or writing to Donna Creech. Divi- 
sion of Social Senices. 325 A . Salisbury Street, 
Raleigh. \C 2''6//. 9/9.733-3055. 

Fiscal \ote: Rules /O \CAC 3J .280/. .340/. 
.3403, .3405, .34/6 and .34/8 affect the expendi- 
tures or revenues of local funds. .4 fiscal note was 
submitted to the Fiscal Research Division on Jan- 
uary 8. /992, OSB.M on January 8. /992. .V.C. 
League of Mimicipalities on January' 8. /992. and 
N.C. .Association of Countv Commissioners on 
Januaty 8. /992. 

C11.\PTER 3 - FACILITV SER\ ICES 



1584 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



PROPOSED RULES 



SL BCHAPTER 3J - THE OPERATION OF 
LOCAL CONFINEMENT FACILITIES 

SECTION .2800 - SUPERVISION 

.2801 SUPERVISION 

(a) Officers shall make supen'ision rounds and 
directly observe each inmate in person at least 
twice per hour on an irregular basis. The super- 
vision rounds shall be documented. If remote 
electronic monitoring is used to supplement 
supervision, it shall not be substituted for super- 
vision rounds and direct visual observation. 

(b) Officers shall maintain voice »f vioual con 
taet- with ail inmateo at aW timos, aft4 it shall be 
through either direct oboep i ation »f by- means ei 
electronic nuneiilanco. In addition to the super- 
vision rounds required in Paragraphs (a) and (c) 
of this Rule, each jail shall utilize one or both of 
the following methods of supervision: 

(1) Direct or remote two-way voice commu- 
nication with all confinement units. 

(2) Visual contact either through direct ob- 
ser\'ation or bv means of electronic sur- 
veillance with all confinement units. 



(c) There shall be more frequent observation 
of inmates who are assaultive, suicidal, 
intoxicated, mentally iU or who have other spe- 
cial needs or problems. 

(d) Officers shall remain awake at all times. 

(e) Officers shall not be assigned other duties 
that would interfere with the continuous super- 
vision, custody or control of inmates. 

(f) Female officers shall be on duty when fe- 
male inmates are confmed. 

(g) The sheriff or the administrator of the re- 
gional jail shall develop a contingency plan for 
the supervision and control of inmates during an 
emergency, and that plan shall provide for the 
ready availability of extra personnel. 

(h) Inmates shall not be allowed to supervise 
or assume any control over other inmates. 

Statutory Authority G.S. I53A-22I. 

SECTION ..3400 - STANDARDS FOR NEW JAIL 
DESIGN AND CONSTRUCTION 

.3401 APPLICABILITY - CONSTRUCTION 

(a) North Carolina State Building Code - Jails 
must meet the requirements of the North 
Carolina State Building Code in elTect at the time 
of construction, additions, alterations or repairs. 

(b) New Jails - The construction standards es- 
tabhshed in Section .3400 shall apply to all jail 
construction for which the final working 
drawings have been approved by the Branch alter 
the effective date of this Rule. The operational 



standards in Sections .2300 through .3200 of this 
Subchapter will affect design options and shall 
be reviewed prior to submittal of working 
drawings. 

(c) Existing Jails - Existing jails shall continue 
to be governed by the existing construction 
standards which are now in Section .3700 and the 
same standards shall apply to new jails which 
have had fmal working drawings approved by the 
Branch prior to the effective date of this Rule. 
Existing jails or new jails which have had final 
working drawings approved by the Branch prior 
to the effective date of this Rule may choose to 
comply with any of the new construction stand- 
ards in Section .3400 as a substitute for existing 
standards on the same subject in Section .3700. 

(d) Additions - The construction standards es- 
tablished in Section .3400 shall apply to any 
construction that adds square footage to the 
building and for which the fmal working 
drawings are approved after the effective date of 
this Rule. 

(e) Alterations or Repairs - WTien alterations 
or repairs are made to an existing jail building 
which affect its structural strength, exits, fire 
hazards, electrical systems, mechanical systems, 
or sanitary conditions, such alterations or repairs 
shall comply with the standards for new con- 
struction established in Section .3400. Unaltered 
portions of the building shall be required to 
comply with the new construction standards in- 
dicated in Section .3400 only under the circum- 
stances specified in Paragraphs (f)-(h) of this 
Rule. 

(f) Extensive Armual Alterations or Repairs - 
If within any 12 month period, alterations or 
repairs costing in excess of 50 percent of the then 
physical value of the building are made to an ex- 
isting jaU, the entire jail shall conform to the 
construction standards for new jails established 
in Section .3400. 

(g) Reconstruction After Damage - If an exist- 
ing jail is damaged by fire or otherwise in excess 
of 50 percent of the then physical value of the 
building at the time of damage, the jail shall be 
reconstructed in conformance with the con- 
struction standards for new jails estabhshed in 
Section .3400. 

(h) Physical Value - For the purpose of this 
Rule, the physical value of the jail building shall 
be determined by the local building inspection 
department. 

Statutory Authority G.S. I53A-22I. 

.3403 COMPLIANCE REVIEW AND 
APPROVAL 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



I5S5 



PROPOSED RULES 



(a) The governing body shall submit copies of 
the following to the Branch before it begins con- 
struction of a new jail and before it makes addi- 
tions or alterations to an existing jail as defined 
by the North Carolina State BuUding Code: 

(1) three sets of schematic drawings and out- 
line specifications; 

(2) three sets of preliminary working drawings 
or design de\'elopment drawings and out- 
line specifications; and 

(3) three sets of completed final working 
drawings and specifications. 

(b) Upon receipt of the drawings and specifi- 
cations at each stage, the Branch shall send one 
set each to the following for their review and ap- 
proval: the Department of Insurance to insure 
compliance with the North Carolina State 
Building Code, and the Division of ['nviron- 
mental Health in the Department of Environ- 
ment, Health, and Natural Resources to insure 
compliance with the rules governing sanitation 
as codified in W N.C.A.C. ^-WAt Soction Mm 
1 5A NCAC ISA. Section . 1 50(1 and which are 
hereby adopted incorporated b\' reference purou 
iiftt- te- G.S. 15(IB M(c). including subsequent 
amendments and editions of the referenced ma- 



terials^ A copy of this matenal can be obtained 
free of charge from the State Division of He:dth 
Ser\ices. 1 nxironmental Health Section, Post 
Olfice Box 27687. Raleigh, North C:aroIma 
27(^1 1-7^S7. The Branch shall keep one set for 



Its own review and approval to insure compliance 
with the minimum standards for the operation 
and construction of jails as contained in this 
Subchapter. Review and comment on the 
drawings and specii"ications at each stage shall be 
made no later than 30 days after their receipt by 
the Branch. 

Staluton Authority G.S. 153.4-22/. 

.3405 CENTR.\L CONTROL ST.\TION 

te jail* AtK- ha>o <* central control station . Ae 
station f i hull: 
f44 t>e f i tratogically locatod a«4 e quipp e d t€^ 

regulate aft«i monitor tfee niosenient ef tn- 

mutei f ttftti o nicer Li: 
^ have a cocurity v e r . tibul e a*- it^ e ntrance: 
(44 have direct two ' ■ ' . dy voice communication 

with aH- confui e nu ' iit unito: 
(rh ha' i e direct tvso ' . say voice communication 

' ■ vilh all- (^Ificei '' a* needed k+ mmnlain ' Uif e ty 

aft4 security; 
(^ ^ e quipped v4tfe a release m e chanism i» 

open aH- confinement HHrt dooTL i ift aft 

emergenc; . : 
(4^ have a toilet aft4 sink. 



Statutory .Authority G.S. I53A-22I. 

.3416 SAFETY EQUIPMENT 

In each jail the safety equipment, including in- 
tercoms, fire extinguishers, smoke detectors, and 
sprinkler heads, shall be tamper-resistant if nec- 
essar}" for security. Two-way voice communi- 
cations shall complv with Rule .2801 of this 
Subchapter. 

Statutory Authority G.S. I53A-22I . 

.3418 PLUMBING SYSTEMS 

(a) Each jail shall have a plumbing system that 
complies with the Commission for Health Ser- 
vices ft«k» 44 N.C.A.C. WA Rules 1 5A NCAC 
18 A, Section . 1 500 and the North Carolina State 
Plumbing Code, both of which are hereby 
adopted incorporated by reference pursuant te 
G.S. 1 5( I B 1 l(cj. including subsequent amend- 
ments and editions of the referenced matenals. 



A copy of J2A NCAC 18.\. Section 1500 can 
be obtained free of charge from the state Division 
of Health Services. I-n\ ironmental Health Sec- 
tion. Post Office Box 27687. Raleitih, North 



^ Carolina 27611-7687. A copy of the North 
Carolina State Plumbmg Code (\'olume H of the 



North Carolina State Building Code) can be ob- 
tamed for twent\" dollars (t20.(IO) from the North 
Carolma Department of Insurance. Post Office 
Box 26387. Raleigh. North Carolina 27611. 

(b) Each jeul shall have a hot water supply for 
lavatories and showers designed to meet the usual 
needs of the number of inmates confmed in the 
jail. 

(c) The master control valves for the plumbing 
system shall be located outside the confinement 
units and shall be accessible to officers during an 
emergency. 

Statutory Authority G.S. IS3A-22I. 

CH.APTER 41 - CHILDREN'S SERMCES 

SUBCH.APTER 411 - PROTECTS E SERVICES 

SECTION .0300 - CHILD PROTECTH E 
SERMCES: GENER.\L 

.0304 RECEIMNG INFO: INITIATING PROMPT 
IN \ESTIGA LIONS OF REPORIS 

(a) The county director shall receive and initi- 
ate an investigation on all reports of suspected 
child abuse or neglect, including anonymous re- 
ports. 

(b) The county director shall make a dihgent 
effort to obtain the foOowing infonnation from 
the person making the report: 



15S6 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



PROPOSED RULES 



(1) the name and address of the parent, 
guardian or caretaker and the name of the 
alleged perpetrator; 

(2) the name and actual or approximate age 
of the child; 

(3) the nature and extent of the alleged neglect 
or abuse; 

(4) the present whereabouts of the child if not 
at the home address; 

(5) other information that the reporter has 
which might be helpful in establishing the 
need for protective services; 

(6) the name and address of the individual 
making the report. 

(c) When a county director receives a report 
on suspected abuse and decides that a law 
enforcement agency should be notified, the 
county director shall provide the law enforcement 
agency with the information obtained from the 
person making the report as outlined in (b) of 
this Rule, oxoopt the namo aft4 addrooo &f tb# 
individual malcing tke raport. 

(d) The county director shall promptly initiate 
an investigation of suspected abuse or neglect and 
in all cases shall initiate an investigation of sus- 
pected abuse within 24 hours after receiving a 
report and shall initiate an investigation of sus- 
pected neglect within 72 hours after receiving a 
report. 

(e) The investigation shall include a visit with 
the child and to the place where the child resides. 

(f) When abuse or neglect is alleged to have 
occurred in an institution, in addition to obtain- 
ing information as described in (b) of this Rule, 
the county director shall initiate the investigation 
by contacting the individual who is administra- 
tively responsible for on-site operation of the in- 
stitution and solicit the cooperation of the 
administration of the institution. 

(g) The county director must have an internal 
two level review, including at a minimum the 
worker and the worker's supervisor, prior to 
making a decision that information received does 
not constitute a report of abuse or neglect. 

(h) The county director must establish a proc- 
ess by which the person providing this informa- 
tion may obtain a review of the agency's decision 
not to accept the information as a report of abuse 
or neglect. The process shall include; 

(1) informing the person providing the infor- 
mation that the agency will not conduct 
an investigation, the basis for that deci- 
sion, and their right to and the procedures 
for obtaining such a review; and 

(2) designating the persons by whom and the 
manner in which such reviews will be 
conducted. 



Statutory Authority G.S. 7 A- 543; 7 A- 544; 
1438- 1 53. 

SECTION .0400 - COMMLMTY CHILD 
PROTECTION TEAMS 

.0408 RECORDS 

(e) Ne community child prot e ction t e am 
mombor wiH retain ef maintain any rooordo f^f- 
taining \» indisidual chonto. 

(^ (a) The county director shall maintain lists 
of participants for each team meeting and 
confidentiality statements signed by the team 
members and any invited participants. Such re- 
cords win be maintained according to the stand- 
ard administrative record retention schedule. 

{^ (b) Cases receiving child protective services 
at the time of review shall have an entry in the 
child's protective services record to indicate that 
the case was reviewed by the team. Additional 
entry in the record shall be at the discretion of the 
Director of Social Services. 

Statutory Authoritv G.S. 7A-544; 7A-675; 132-1; 
132-3; I43B-153. 

.0410 CONFIDENTIALITY 

(a) The county director is authorized to share 
with the community child protection team any 
information available to him that is needed by 
the team in the execution of their duties as de- 
fmed by Rule .0402 of this Section. 

(b) Each team member and invited participant 
shall sign a statement indicating their under- 
standing of and adherence to confidentiality re- 
quirements including the possible civil or 
criminal consequences of any breach of 
confidentiahty. Rules regarding confidentiahty 
shall apply to any personal tiles that are created 
or maintained by any team member or invited 
participant. This does not preclude any agency 
representative from sharmg with his agency, on 
a need to know basis, information acquired at a 
community child protection team meeting re- 
garding a current client or referred case. 

(c) .Members of the team who have access to 
client information and fail to comply with the 
mles in this Section shall be denied access to 
confidential information and subject to dismissal 
from the team. 

(d) Any invited participant who is given access 
to client information during the team review and 
fails to comply with the rules in this Section shall 
be denied future participation in team reviews. 

(e) The county director shall not share any in- 
formation which discloses the identity of indi- 
viduals who have reported suspected abuse or 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



15S7 



PROPOSED RULES 



neglect to the county department of social ser- 
vices. 

Statutory Authority G.S. 7 A- 544; 7A-675; 
IOSA-80; I43B-I53. 

.0411 MINLTES 

(a) I-\er\' community child protection team 
shall keep minutes of all official meetings, ex- 
cluding e\ecuti\'e sessions, in compliance with 
the open meetini^s law. These minutes shall be 
permanent public records and shall be main- 
tained according to the standard administrative 
record retention schedule. 



(b) Infonnation regarding indi\idual clients 
shall be discussed in e.\ecuti\c session. Any 
minutes generated from any exccuti\e session 
shall be sealed from public inspection. 

Statutory Authority G.S. 132-1: 132-3; 132-6; 
132-9; 143-31S.9-I2. 



•k'k'k'k'k'k-k'k'k'k'k'k'k'k'k-k-k-k 



No 



otice is hereby gi\'en in accordance with G.S. 
I50B-2I.2 that the Medical Care Commission 
(Division of Facilitv Services) intends to adopt 
rules cited as 10 \CAC 3L .0901 - .0907, .1001 - 
.1007, ,1101 - .1111, .1201 - .1202. .1301 - .1303. 
J 40 J - .1402 and repeal ndes cited as 10 SCAC 
3L .0111 - .0116, .0205 - .0210, .0305 - .0314, 
,04/8 - .0421, .0504 - .0506. .0604 - .0605. 

1 he proposed effective date of this action is July 
I, 1992. 

1 he public hearing will be conducted at 9:30 
a.m. on March 13, 1992 at the Council Building, 
Room 201, 701 Barbour Drive. Raleigh, ,VC 
27603. 



Re 



reason for Proposed Action: To adopt ndes for 
licensure of home care agencies to become effec- 
ti\-e July I, 1992 pursuant to House Bill 168. 
Repeal of the Home Health rules is necessary be- 
cause new home care licensure ndes will cover 
home health agencies (refer to House Bill 168). 



c 



omment Procedures: Written comments 
should be submitted to Jackie Sheppard, 701 
Barbour Drive. Raleigh, \orlh Carolina 2^603 by 
.March 12, 1992. Oral comments may be given at 
(he hearing. 

CH.APTER 3 - F.\CII.ITV SERVICES 



SUBCHAPTER 3L - THE LICENSING OF 
HOME C.\RE AGENCIES 

SECTION .0100 - GENERAL 

.0111 DEFINITIONS 

Ti» following dofinilionf i wtU apply throughout 
tfei* Subchaptor: 

f44 "i\goncy director" moano t4*e poroon hav 
tftg adminir . tratii i (? rij '. pon '. ibility fof A^ ©p- 
oration (>f Ae hom e health agency. 

f^ "Car e plan' moanfj t4*e propoc i od muthod 
developed i» writing t*y vrhich tbe agency 
staff piano to pro' . 'ide patient ease cenic e s. 

(4^ "Dopartmont" m e ans tlw North Carolina 
Dopartmont frf Human Rooourcoo. 

f4) "Governing body" moans the poroon ef 
group &f poroou 'f ha' i ing foil legal authority 
afi4 ownor^ . hip rer . pon ' - . ibility fe* the opera 
tieft »f the home health agency. 

(4^ "Homo hoalth aide" moanC f aft individual 
whe r e nd e rs as ' . . islanco tt* patients fof pef- 
sonal 6afeafi4 other duties a* spocifiod fo t4*e 

f6) "Licensed practical nurse" m e ans a person 

duly licensed a« such . holding a curront fo 

cens e a* required by North Carolina statute. 

f?) "Occupational therapist" means a person 

duly licensed as such, holding a curront li- 

cense as required h\- North Carolina statute. 

fSi "Physical therapist" means a person 4«l¥ 

licensed a* such, holding a current license as 

r e quired by North Carolina statute. 

fl| "Physician" means a person licens e d as 

such, holding a current license as required 

for North Corohna statut e . 

f+O^ "Plan »f treatment" means the written 
ord e rs »f a pliysicicui fof the hom e eafe »f 
the physician's patient developed fo consul 
tation with agency staff 

fl4^ "Public agency" means aftv go' i emmental 
Hfttt including fo+t wM- limited te^ the f e d e ral 
go' i omment. the state, aftv subdivisions »f 
the state, counties, »f municipalities. 

f4-3^ "Registered nurse" means a person 4t4y 
hcensed as such, holding a current license as 
required for North Carolina statut e . 

f444 "Social worker" means a person V i ith a 
masters degre e from a school ef social work 
approved for the Council »» Social \\'ork 
F ducat ion who '» eligible fof certification hy 
the North Carolina Certification Board fof 
Social Work as a Ceilified Master Social 
Worker. 

f+4) "Speech pathologist" means a person >fofo 
hcensed as such, holding a current license as 
required l*y North Carolina statut e . 

ffo) "Speech therap> " means prolessional 
vices provided for a speech pathologist. 



15SS 



6:21 NORTH CAROLINA REGISTER Eebiuary 3, 1992 



PROPOSED RULES 



Statutoty Authority G.S. I3IE-I36(2): 13IE-I40. liconso. 



ment at afty timo as a condition ef holding ouch 



.0112 LICENSE 

Homo health agoncion nhall be liocnnod j» as- 
cordance with G.S. HIP 138. Public aaencioo 
aft4 county aft4 district hualth dt ' partmantf ' shall 
b# exempt from liconr i uro aft4 liccnr . uro ruleri i» 
accordance with th« provioiona ©f G.S. 
13 IE 136(3). 

Statutoty Authority G.S. I3IE-I40. 

.0113 APPLICATION FOR AND ISSLANCE 
OF LICENSE 

fa) Aft application fef th» operation »f a homo 
health aoency shall t»e ■■ ubmittod t© the depart 
ment prior to a licens e being issued. 
fl*| ¥he application shall include: 
f4^ tjhe name aft4 address &f each p e rson hav 
iftg aft ownership inter e st (directly m- m- 
dir e ctly) ef ^ p e rcent ©f mor e ef the homo 
health agency; 
(-3^ tfee name afi4 address &f e ach oflicor aft4 
director ©f tfee corporation if the homo 
health agency is organju^od as a corpo 
ration; aftd 
(4^ tfa» name aft4 address ef e ach partner ^ the 
home health agency i* organLwd as a 
partnership. 
fe^ rve- nevf applicant shall be issued a lic e ns e 
untU r e presentati' i es »t the department have 
conducted aft inspection »f the hom e h e alth 
ag e ncy fof d e termination »f compliance with the 
rules contained ift this Subchapt e r. 

V *-* / 1 IIV.' UT-'J.^il 1 1 1H.TH JliLllI l"i;'LIC CT H V^Tl 1 ST^ ITT ^TtT.^1 

home health agency annually. Fach lic e ns e shall 
e.xpire at- midnight »» the e xpiration date »» the 
hcense afi4 is renewable upon application. 

(e) The licenoo shall he posted i» a prominent 
location accessible te- pubho view within the 



premises. 

(4^ The license shall he issued fof the pr e mises 
afi4 persons named i» the application aft4 shall 
ftet he transferable. AW names »pi4 street a4- 
dresses under which the agency operates shall 
appear ©ft the license. 

k^ Prior t© change ©f ovs'nership ©f the estub 
lishment ©f a Hew home health auenc . . aU certif 



icate ©f need r e quirements must he satisfied. 
Statutory Authority G.S. I31E-140. 

.0114 INSPECTIONS 

(a^ Aftv home health agency licensed hv the 
department shall he subject t© proper insp e ctions 
hy aft authorized representative ©f the depart 



fh^ I'Vny organbiation subjoct t© lic e nsur e which 
presents itsotf te tfee public as a home health 
agency, which doos set hold a lioonso, aft4 is ©f 
fftay he ift violation ©f -W NCAC ^ .0112 aft4 
Gt^ 131E 138 shall he subjoct te proper ift- 
spections at afty time by authori^^ed repreoen 
tativoo ©f the department. 

(«) Afty authoriz e d r e pr e sentativ e ©f the de- 
partmont shall make his identity known t© the 
porson ift charg e prior t© inspection. 

(4) Inspection ©f medical records shall be &af- 
He4 ©Ht ift accordanc e with G.S. 131E Ml(b). 

fe^ Aft inspection shall be considered proper 
wheno' i or the purpos e ©f the inspection is t© de- 
t e rmin e whether the agency complies w4th the 
provisions ©f this Subchapter ©f ' ■ vhonever there 
is reason t© believe that some condition e xists 
which is ft©t ift accord with accepted pubhc 
h e alth standards aft4 practices. 

Statutory Authority G.S. 131 E- 140. 

.0115 COMPLIANCE WITH LAWS 

fa} The home health agency shall he » com 
pliunco with aU applicable state aR4 local laws, 
rules aft4 regulations. 

(b) Staff ©t tbe home health agency shall be 
currently licensed ©f registered ift accordance 
wtth applicable laws ©f the State ©f North 
Carolina. 

Statutory Authority G.S. I3IE-I40. 

.0116 ADVERSE ACTION 

The departm e nt may d e ny, susp e nd, rovoko, 
recall e* amend a license ift accordance with (j.S. 
13 Hi 139 fe* aftv hom e health awncv which sts- 



nificantly foWs t© comply V i ith tbe rules contained 
ift this Subchapter ©f V i hich fails t© implement 
aft approved plan ©f correction fef deficiencies 
cited by the department. A home health agency 
H»y appeal »Pi^ adverse decision mad e by the 
department concerning its license by making such 
appeal ift accordanc e Vrith the Administrative 
Procedure Act, G.S. 150i\ aft4 departmental 
F©les 4^ NCAC 44» Sim et se^ As provided f©f 
ift G.S. 1311' 112, the department ma;i' seek- 
injunctive relief t© prevent a privat e ag e ncy from 
establisliing ©f operating a home health agency 
without a license. 

Statutory' Authority G.S. 131E-140. 

SECTION .0200 - ADMINISTRATION 

.0205 AGENCY MANAGEMENT AND 
SLPERMSION 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



I5S9 



PROPOSED RULES 



f*+ -fhe go' i oming body ohall gstabliuh ^vritten 
policiL ' G go>L'ming aH af . pcctij ef agoncy opora 
lion. iSuch policioo ahall fe»e asaUablo fof is- 
opoction by the dupartmont. 

(4*^ 4-^h» hom e ht ' iilth agency 4K4i do '. ignato aft 
individiiul to i .e nt ' a« agL'ncy dir e ctor. -fh^ 
agoncy director shall have tfee authority aft4 bs- 
r . ponf ' ibility fof adminictrati' i' L ' dirL'ction trf 4» 
homo hoalth agoncy. 

(-e+ 4-ht» homo hoalth agones •. hall d e'. ignato a: 
physician tvf rogir . torod nurriO to ' lupoP i i ' jO profoo 
oional actisitioo » pros'lduig homo hoalth oonicos 
ift accordanoo V i ith Ae ord e rs trf ti*e phyr . ician 
r e-. pon^ ' ibl e f»f e«ft» »f Ae pationt aftd under a 
plan e4' troatmont e;. tablif . hod by such physician. 

(4| 1 hero shall be writton documentation ttet- 
spociilos tb© rosponsibilitios aft4 authonty ef tbe 
ag e ncy dir e ctor aft4 professional sup e rsi 'i or. 

fe-^ tf e ith e r fvf t4+e positions (4 agoncy director 
»f prolossional supeniaor ho comes s'acant. At* 
department sliaU bt^ notified ssithin ^ hours » 
wnting f»f such vacancy along with tbe name &f 
t4+e roplacomont. tf a' i 'ailablo. 

fft- -t4*e agoncy director a«4 professional super 
s isor may be tbe same indi' i idual. 

fg-^ Xt4 homo h e alth ag e ncy shall delegate k« 
admmistrativo a«4 supoP i isop i ' functions to as- 
othor agonc> 64^ organisation. 

fb| 4-bt» homo health agency shall ha>o ^vritten 
policioo v i' Kich identify tbe specific g e ographic 
area ift which tbe agoncy provides sen . ices. 
Whore iipplicablo. these geographic afe« policies 
shall be con ^ ustent ' . vith tbe certificate e+" need Fe- 
stnctions »» geographic ar e a. 

Statutory Authority G.S. J31E-/40. 

.0206 FINANCIAL AND STATISTICAL 
RKCOKDS 

(a) Tbe hom e h e alth agency sbali e stablish, 
maintain aft4 make available fof inspection Fe- 
cords t4 operating costs, amtual budgets aftd *i- 
tistical records. 

(4h -fte records shaU include at- a minimum: 
hours i i s-orkod by a«4 salap i ' paid to agoncv efti- 
ployoes: pationt census info nnat ion including 
numbers (-4' referrals, admissions, discharges, pa- 
tient diagnoses aft4 other stati 'i ticcd tiatrt as pe- 
quir e d fof Ae operation »f tbe agoncy ef by tbe 
d e partment. 

f«H Records shall be retained fr>f a period ef Bet- 
le^^ than frve y e ars. 

(4+ When a home health agoncy operates a^ a 
part ei' a health eafe lacility hcensed under Article 
^ (4f ^ rf Gt^ l.^lb, tbe ag e ncy -^bwU niaintiiin 
r e cords t4 activities afi4 o.yponditures tbat- afe 
s e parate aft4 identifiiiblo. 



Statutory Authority G.S. I3IE-I40. 

.0207 PERSONNEL 

(«+ Written policies sbali be e stablished aft4 
implemented which control tbe exposure ef tbe 
patient aft4 omployoos to porsono Vritfe 
communicablo diseasos. Employo e health es- 
aminations shall include tuberculosis screening 
upon e mployment aft4 annually thereafter 
througliout tbetf p e nod ei emplo' i mont. 

(b) Written policioo sbaii be e stablished afi4 
implemented which include orientation aft4 ifi- 
sersico education. R e cords eft tbe subjoot ef m- 
sonice e ducation m^ attendance shaU be 
maintained by tbe ag e ncy aft4 rotained fef at- l e ast 
Bfte year. 

(-e-)- J+*b descriptions fe* osop i' position shaU be 
e stablished m- wnting sshich include qualifica 
tions aft4 sp e oifio r e sponsibilities. Individuals 
shall be assigned only to duties fof which tbey 
afe trained rtft4 competent to periorm afttb when 
applicable. tt+F sshich thoy afe properly hcensed. 

f44 I'orsonnol records shall be established afi4 
maintained fo+ oach employee which mclude ed- 
ucation: tniining: previous e .\pen e nce: venfica 
to»ft ef liconso. when applicable: other 
qualifications: annual performance o' . aluationo; 
a«4 e vidence oi hoalth screening. 

Statutory .Authority G.S. 1 31 E- 140. 

.0208 ADMSOR^ GROLP OK PROFESSIONAL 
PERSONNEL 

fa^ Aft advisory group t*f professional person 
ftei including at- least efte phv ' sician aft4 efte feg- 
ist e red nurse aft4 appropnato ropresontati' . ea 
from other prof e ssional disciplines shall: 

(4-f review afi4 evaluate annually agoncy poll 
eie* governing tfee scope ef s e nicos e^ 
ferod. admission aftd- discharge policioo, 
m e dical supervision aft4 plan ef treat 
mont. emergency care, clinical records, 
personnel quahficationo aft4 program 
evaluation; 
(-3^ advise tbe agency eft professional issues: 

(4) assist tbe agoncy m maintaining haioon 

' i vith other hoalth eafe providers ift tbe 

community. 

(-b4 Tbe group •■ hall meet at least quarterly. 

MinutO '. ef adsisoP i group moetuigs shall be 

maintained by tbe agency. 

Statutory Authority G.S. I3IE-140. 

.0209 EVALUATION 



1590 



6:21 .\ORTH CAROLINA REGISTER February 3, 1992 



PROPOSED RULES 



total operation nhall be carriod e+ri- at- loaot aft- 
nually by^ 

(4-^ the advinory group ef professional pef- 
sonnel doocribod i» Rule .0308 »f this 
Subchaptor, 

(5) ag e ncy staff aft4 consumoro, &f 

(4) appropriato professional persons outside 
t}«* agency ' ■ vorlcing with consumers. 
?4ie evaluation shall assure tbe appropriateness 
aftd quality ef the agency's services with findings 
used te- ' I 'orify poUoy implementation, t» identify 
problems, aft4 te- establish problem resolution 
aft4 policy rosioion as necessary. 

fb-^ The evaluation must consist e( em osorall 
policy smd administration review. Statistical data 
te be assessed shall includ e the foUosving as a 
minimum: 

f4-^ number ef patients receiving each service; 

f3) number ef sisits by discipline; 

f^ patient diagnosis; 

f4) sources »f r e ferrals; 

(4) numbers and r e asons fof nonacooptanco 

(4-^ reasons fof discharge. 

(©) Aft evaluation »f the agency's clinical te- 

cords shall be carried »«t- at least quart e rly by 

appropriate health professionals representing the 

scope »f the agency's program. The evaluation 

chnical records te ensure that agency policies afe 
followed i« providing sonices, both direct aftd 

tTTTTTCT II I I 111 I 5-,^- 1 1 1 V 1 1 1 , CTTTCr tTT CTTTTmrC TTTTTT mC <-! tlUll IT 

ef ser i ico is satisfactor) aftd appropriate. The 
re' i iow shall consist ef a representative sample »f 
aH sop i ices provided by the agency. 

(4^ Documentation ef the evaluation shall ift- 
clude the names »f persons curr i ing B+ft the 
evaluation, the criteria aod methods used t© ae- 
complish it7 aftd the action taken by the agency 
as a result »f the findings. 

Statutory Authority G.S. I3IE-I40. 

.0210 HOSPICE CARE 

ff a home health agency offers ef provid e s a 
hospice program ef car e , such ser < icos shall be m 
compliance w4th ail provisions ef -W NCAC ¥f- 
(Hospice licensing Rul e s), with the exception 
©f rules requiring a separate hospice license. 
Should the home health agency's hospice p*©- 
gram be found » non compliance svith hospic e 
lic e nsure rul e s »ft4 statutes, that shall be a vie- 
lation el their homo health agency Uconso. Ad- 
verse action shall be taken i» accordanc e with 
Section .0100 ef this Subchapter aH4 injunctiv e 
relief fsay be sought m accordance with North 
Carolina General Statute 13 IE 206. 



Statutory Authority G.S. 
I3/E-203: I3IE-206. 



I31E-20I: I31E-202; 



SECTION .0300 - SCOPE OF SERVICES 
.0305 SERVICE REQUIREMENTS 

must provide at least »fte oth e r therapeutic se*- 
vico; ker physical, spoooh, &f occupational thor 
apyy social work sonices, e* home health aide 
sop i icos. The agency shall provide »f make af- 
rangoments fof obtaining afty n e c e ssary medical 
supplies, equipment ef prosthetic devices needed 
by the patient at homo. The agency shall be Fe- 
quir e d to provid e , at least , on call skiU e d nursing 
senicos eft a 34 hour basis, se^^en days pef week. 

Statutory Authority G.S. I3IE-140. 

.0306 ACCEPTANCE OF PATIENTS 

The hom e health agency shall implement aftd 
follow written policies governing the acceptance 
©f patients. Considerations relevant te- the ae- 
ceptanco »f patients includ e : 
fi) adequacy aft4 suitability ©f ag e ncy person 
Hel aft4 resources t© prosido the services f%- 
quirod by the patient; 

(3) reasonabl e expectation that- the patient's 
modical, nursing, aft4 social needs ©aft be 
H*et ad e quately at hom e ; 

(4) adequate physical facditi e e i» the patient's 
homo fof h» proper car e ; aftd 

(4) availability ©f family ©f substituto famdy 

patient's car e . 
Statutory Authority G.S. I31E-I40. 

.0307 NURSING SERVICES AND DUTIES 

fa^ Nursing sor i iceo shall be provided by ©f 
under the supoP i ision ©fa registered nurse a«4 ift 
accordance w4th the North Carolina Nurse Prac 
tke A«tT e^^ Chapt e r 00^ iVrtiol e 9A. 

(b) Registered nurse duties include the follow 
iftg as a minimum: 

fh^ regularly assess the nufsing needs ©f the 

pati e nt; 
f3^ de^' e lop aftd implemont the patient's 

nursing eafe plan; 
(4^ provide nursing senices, treatment, aft4 

diagnostic aft4 preventive procedures; 
(4f initiato preventive aft4 rohabilitati' . o nurs 
tftg procedures appropriate fof the pa- 
tient's eafe aftd safety; 
(4^ obser i o signs aft4 symptoms at^^ report t© 
the physician afty r e actions t© treatment. 



6:21 NORTH CAROLINA REGISTER Februaiy i, 1992 



1591 



PROPOSED RULES 



dru i j ^ i, Bf- changuo » tiw pati e nt's physical 

e* emotional condition; 
{4>} teach, liuponi '. o, aft4 counsel tfee patient 

aft4 family mombenj about providing 

nursing eafe fof tl+e patient at- home; a«4 
f?f supeniso cift4 train other nursmg servic e 

porsonnol. 
fe^ licensed practical nurno duties afe pef- 
fonned under tfee i . uper r ision ef a registered 
nurs . e afi4 include At» folkn' i ing a* a minimum: 
(-1-^ ob j. ep . e. record aft4 report t» the supervi 

sef »ft Ae general physical aft4 mental 

condition »f the patient; 
f^ administer prescnbed medioationo aft4 

treatments; 
(4^ assist ti*e physician ef registered nurse i» 

perfomiing speciali/.ed procedures; nfv^ 
{Arj toaoh Ae pati e nt a«4 family members 

about providing nursing eafe t» Ae pa- 
tient- at home. 

Statutory Authority G.S. 1 31 E- 140. 

.0308 PinSICAL TIIERAPV SERVICES 

fa-^ U aft agency provides ef arranges fof phys 
ieai therapy such services shall be provided by 
»f under the super . ii . ion ©+~ a licensed physical 
therapist a«4 i» accordance with G.S. Chapt e r 
Oft, ,Vrticl e 4^;ft7 Ph; , sical Iherapy. 

<-h^ Ph\racal therapy duties include the follow 
tfttf as a minimum: 

f4-)' assess the patient t& determin e l e v e l &f 

physical function: 
f3) establish aft4 implement physical therapy 

treatment plan: 
(4-^ observe, record, aB4 report te the physi 
€4aft aftv reaction t» treatment e* changes 
m the patient's condition: 
f-H in i. truct the family *«• the patient's total 

physical therapy program; aft4 
{4i instruct family members, hom e health 
aid e s aft4 other health team personnel ift 
perfonning appropnate therapy treatment. 

Statutory Authority G.S. I3IE-I40. 

.0309 SPEECH THERAPY/PATHOLOGY 
SERVICES 

fa-^ tf aft agency provid e s t*f arranges fef speech 
therapy, Bf sersicos m speech pathology Bf 
audiology such sonices shall be provided » ae- 
cordance v4tfe Gr^ Chapter Wr Article j^ North 
Carolina 1 icensure Aet fof .Speech aft4 Language 
Pathologists aft4 jVudiologists. 

fb^ Speech pathologist duties include the fol- 
lowing as a minimum: 

f4-^ ass e ss pati e nts wrtb speech, hearing ef 
lanQuaae disorders; 



(3) establish aft4 implement the opeoch thor 
apy treatment plan; 

(4) record aR4 report t» the physician aft¥ fe- 
action t© treatm e nt aft4 changes m the 
patient's condition; 

(4f teach other health team p e rsormel aft4 
family members te- help improve aft4 ee*- 
Feet the patient's speech, hearing aft4 las- 
guago disabilities; an4 

{S} counsel the patient aft4 family about the 
patient's speech, heonng aft4 language 
disabilities. 

Statutory Authority G.S. 131E-I40. 

.0310 OCCLP.VTIONAL THERAPY SERV ICES 

fa) tf aft agency provides &f arranges fef ocou 
pational th e rap' . , such s e nic e s shall he pro' . ided 
m accordance whh Gt^ Chapter Wt Article \i^ 
Occupational Therapy. 

fh) Occupational therapist duties include the 
following as a minimum: 

f+-^ assess the patient's functional abihty te- 

perform acti' i itios »f daily Uving: 
f3f establir . h aft4 implement the occupational 

therapy treatment plan: 
(4) obser . 0, record. aft4 report te- the physi 
ektft aftv reaction te- treatment aft4 afty 
changes wt the patient's conditicm; 
f4) instruct family members, home h e alth 
aides aft4 other health team personnel i» 
appropriat e therapy methods: a«4 

\ ~ J U \- -I I. ZJi 1 , LJ\_ T \^ H^ I ' Lli LU. 1 1 L L* 1 11 IKJ \.L\J U-VJ 1 ll,^^JJ Lll lU 

self help de' i ices. 
Statutory Authority G.S. 131 E- 1 40. 

.031 1 SOCIAL WORK SERV ICES 

faf \i aft agency pro ' ■ ides ef arranges fof social 
wefh services, such s e nic e s shall he provided 
und e r the supePrision ef a social worker aft4 ift 
accordance v i ith the plan ef treatment. 

(h) Social work seP i 'ices include the foUov i ing 
a* a minimum: 

(4) assist the physician aft4 oth e r m e mbers ef 
the h e alth team » understanding the s«- 
nificant social stPfA emotional factors fe- 
lat e d te- the patient s health problems: 
f4^ assess social aft4 emotional factors ift order 
te- e stimat e the patient's capacity aft4 pe- 
t e ntial te cop e with problems ef daily h'.^ 
iftgr 
(4) help the patient aft4 family te- understand, 
accept, aft4 foUov . ' medical reooirunen 
dations aft4 provide ■l ep . ices planned te 
restore the patient te optimum ■■ ocial aft4 
health adjustment v i ithin hi* capacity; 



1592 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



PROPOSED RULES 



(4) ac i sist the patient aft4 family with | 

aft4 oiT i 'ironmontal difi'icultieti which 
prodioposo toward illnooo »f intorforo with 
the pationt obtaining maximum bonofito 
from m e dical caro; aft4 

fS) aiioiot the patient aft4 family m the utiliza 
tioft ef appropriat e community ruoourcoa. 

Statutory Authority G.S. I31E-I40. 

.0312 HOME HEALTH AIDE SERVICES 

(a-)- tf a» ag e ncy providoo &f urrangori fef home 
health aitle sep . 'ices, the oon'iceo r . hall be provided 
tft accordance with the plaa »f treatment. 

fb) Home health aides ohall be under the 
Gupor i 'ision ef a regist e r e d nuroo. physical thera 

(e) Home health aid e s shall follow instructiono 
fof patient eafe written by a r e gister e d nurso, b- 
conoed physical therapist, occupational therapist 
Bf speech pathologist. Hom e health aide dutioo 
include the following as a minimum: 

(-I4 help with prescribed exorcises which the 

patient aft4 homo health aides hav e boon 

taught by appropriate professional pef- 

Bonnel; 

provide personal eafe firerT bathing, eafe 

\Jl TTT^mTTTY LTlVli I HI iXX 1 1UL1T7 

assist with ambulation; 
assist with medications which afe ordinar 
ily s e lf administered dret^ svhich afe ef- 
dorod by a physician; 

perform incidental household sor i icoo 
which afe essential te the patient's eafe at^ 

1 1 \.' 111^, CIT^CT 

record aft4 report changes m the patient's 
condition, family situation ef needs \» the 
appropriate health eafe professional. 



^ 

m 
W 



^ 



(^ 



Statutory Authority G.S. I3IE-I40. 

.0313 SLPERVISION OF HOME HEALTH 
AIDES OR OTHER PERSONNEL 

(a) Home health aides ef other allied health 
personnel utilized in- providing hom e h e alth sef- 
vioos shaU be trained aft4 supenisod by profes 
sional personnel appropriate fof the soP i 'ico 
pros'ided. 

fb) A- registered nurs e , occupatitmal therapist, 
physical therapist ef speech pathologist shaU s«- 
pon'iue a home health aitJe by maldng a supend 
sefy visit te- the patient's homo at least evefy two 
weeks. Vrith »f without the aid e 's pr e sence, te 
assess the eafe afi4 s e rvices being pro' i ided. 

(e) Other allied h e alth personnel, including btri- 
net limited t«- hc e ns e d practical nurs e s, licens e d 
physical therapy assistants, aft4 hc e ns e d occupa 
tional therapy assistants shall be sup e n'ised by 



professional porsonnol appropriate fof the sef- 
vio e o provided eft a plann e d basis te adequately 
ro' i 'iew indis'idual piano ef treatment afi4 aososo 
patient progroos. 
(4)- Documentation ef ouporvisory visits ef fe- 

record, aft4 shall include the cupervioor's assess 
mont ef the patient's gonoral condition, environ 
mont, aft4 progress. 

Statutory Authority G.S. 1 31 E- 140. 

.0314 ARRANGEMENTS FOR SERVICES WITH 
OTHER AGENCIES/INDIVIDUALS 

fa) W^on a hom e health ag e ncy mak e s af- 
rangements fof providing oorvicos by other agen 
eies ef individuals, there shall be a written 
agre e ment, signed by both provid e rs ' ■ s'hioh ift- 
cludes the following: 

ff) specific sor i' ico te be provided; 

f2) period ef tim e the contract is to be ift ef- 

(4) availability ef services; 

f4) fmancial arrangomonto; 

(4) verification that any individual providing 
service is appropriately licensed as fe- 
quired by statute; 

(4) provision fef supervision ef contract pef- 
sonnel whore applicable; 

{p^ assurance that individuals providing sef- 
vic e s under contractual arrangements 
meet the same requirements as those 
sp e cified fef homo health agency person 

rrv"i" ui lu 

fH) provision fef the documentation ef sef^ 
vices rendered i» the patient's medical fe- 
cord. 

fb) Aif contract serv ' icoo shall be provided i» 

aftd the patient eafe plan. 

fe} '-fhe hom e health agency shall assure that 
aH- contract sorvices afe provided m accordance 
with the agreement. 

Statutory Authority G.S. I3IE-I40. 

SECTION .0400 - ESTABLISHMENT: 
REVIEW/PLAN OF TREATMENT 

.0418 POLICIES 

A home health agency shall have written poli 
eies ttft4 procedures fef assuring that services aft4 
items te be provided afe specified under a plan 
ef tr e atm e nt established a«4 regularly reviewed 
by the physician responsible fef the eafe ef the 
patient. 

Statutory Authority G.S. I3IE-I40. 



6:21 NORTH CAROLINA REGISTER February i, 1992 



1593 



PROPOSED RULES 



.0419 I'LAN OF TREATMENT 

(*>• 4-b*» plan Bf treat mont must b« signod by 
A# phy/ ' ician r ei iponr i iblo fof A** ease »f the pa- 
ti e nt iift4 incorporatt ' d » Ae mcd i L-al rooord. 

f^ 44*4* plan ef troatmont >i hall include as a 
minimum: 

f+l h^f>t» t+f i.e r . 'iL- e required; 
f3-^ trequonoy ef vir . it o: 
f4^ equipment required; 
f4} acti' . itior i pumiitted; 
f^ functional limitationo; 
{4^ rehabilitation pot e ntial: 
(^ d+e*- aftd nutritional needs; 
fS) medications afi4 treatments; 
fO^ r . peciJio therapies; 
f4% pertinent diagnoses; 
(444 mental status; 
f4-i+ prognosis; i*ft4 
f44| safety moaoures. 

Statulmy Authority G.S. 131 E- 140. 

.0420 REMEVV 

(*)■ 44+e total plan »f treatment must tn* fe- 
' l iewed 1*¥ t^ patient's physician ift- consultation 
with agency professional personnel as often as 
tfee severity ef tfee patient's illness requires Wt- 
»»*• tess thim once e^ery' twe- months. 

(4»-)- Any health professional providing servic e s 
shall notify tht» ph; . sician el changes in t4*e pa- 
tient's condition which indicate the need fof al- 
t e ring tbe treatment f4aft »f fo* terminating 
seP i 'ices. 

Statutoiy Authority G.S. J3/E-/40. 

.0421 PATIENT CARE CONFERENCES 

Appropriate agency staff shall ha' .e patient eafe 
ease conferences te- assure coordination ef sej^ 
■ ■' ices rendered »ft4 te r e view tb«* patient eafe 
plan. Documentation e4 these ease conferences 
shall be mamtoined t» ttie patient's r e cord. 

Statutory Authority G.S. I3IE-I40. 

SECTION .0500 - DRL G AND TRE.ATMENT 
ORDERS 

.0504 POLICIES AND PROCEDl RES 

44ie home health agency shall have policies aft4 
procedures r e lativ e te- tbe administration trf drugs 
aftd treatments. 

Statutmy Authority G.S. 13IE-I40. 

.0505 ORDERS 

(af Orders fof dmgs m^ treatments skaW be 
signed by Ae physician afi4 tbe original incor 
porated h+ tbe patient's medical r e cord. 



(b) Verbal orders fof drugs aft4 nursing tr e at ■ 

J I IV iii^ Ji 1UJ.1 TT^ cj • wTT rrr cr rm^TTT^c^r 1 1 u i uv * r^^^^^^i^tr 

aR4 signed by the person receiving it- and 
count e rsigned by tbe physician ' i vithin »fte V i ook. 

\" J ' VI T.JTII OTTTCTTT rTTT Lllll Wl rTCmTTT L^JI f IVT. J ^Tm^T 

than nursing shall be given t» e ither a licensed 
nuroo »f tbe appropriate health professional, m- 
corded aft4 signed by tbe person r e ceiving it afvA 
countersigned by tbe physician ' ■ sithin »fte week. 

Statutory Authority G.S. 131 E- 1 40. 

.0506 STAFF RESPONSIBILITY 

fa)- Agency Uoonsod nursing staff shall be re- 
sponsiblo fe* checking ali medications aft4 shall 
be sp> e cifically accountable foff 
f+Sf recogniging side effects; 
f:3) rocognii'.ing toxic eff e cts: 
(4-) rooogni?,ing allergic reactions; 
f+) recognijdng immediate desired effects; 
(4) recognij'.ing unusual stf^ unexpected el- 

fcct'~,' 
f^ rocogniidng changes i» tbe patient's con 
dition that contraindicateo continued ad- 
ministration ef tbe medication; 
f^ anticipating those effects which may fap- 
idly endanger a patient's bfe »f well being; 

fS) notifying tbe physician ej^ any problems. 

fb) iXgoncy licensed nursing staff shcdl instruct 

tbe patient afi4 family members as necessary' i** 

following tbe dnig regimen prescribed by tbe 

physician. 

Statutory .Authority G.S. 13IE-I40. 

SECTION .0600 - MEDICAL RECORDS 

.0604 REQl IREMENT 

fa^ 44te home hecdth agency shall maintain a 
medical record fop each patient receiving senicoo. 

fb4 44*e agency shall assure tbat medical fe- 
cords afe kept confidential a«4 secure ©« tbe li- 
c e nsed pr e mises. 

fe^ .Medical records shall be retained fe* a pe- 

tbe most recent discharge ef tbe patient. 
Statutory Authority G.S. 13IE-I40. 

.0605 CONTENT OF RECORD 

44*e medical record shall contain pertinent f»ast 
aftd current medical a«4 social data »h4 4+aH in- 
clude tbe folio ' ■ sing information as a minimum: 
{Vf Admission diita: 
(a} id e ntification data (name, addre -. s. tele- 
phone number, date ef birth, se^ marital 
status, social secunty number); 



1594 



6:21 NORTH CAROLINA REGISTER Febiuaiv 3, 1992 



PROPOSED RULES 



PTTT riUI I IV J X^i. 1 IV- V\l. l^ I IdcTT U 1 1 U . L^ i 1\_ w,UT 1 

fe) niirriL ' ^ ef othur fmnilv momboro; 

(4) sourco »f roforral; 

f*) admi ' j i' ion aft4 dioohargo datos from hoG 

fHtai ef othtT in ' jtitution ' ■ vh e n applicablo; 
ff)- namoo ©f phyf p iciano ror i ponoiblo fef A» 

patient - J car e : a«4 
fgf aC ' OOf i &rrnjnt ef homo e nvironm e nt. 
f2) Clinical data: 
fa)- pati e nt's diagnoc . oo; 
f^ phyrician'r . pk» ef treatment including 

drugo aft4 treatmonto, tJietr activity an4 

opocifio GonicL'o aft4 thcrapiuo roquirod: 

fe) initial asoooomcnto W appropriate) disci 
plines: 

(4-^ pati e nt eafe pktft utilizing probl e m id e n 
tification, A<? ootablic i hmont »f goals a«4 
proposed intop i entions: 

fef progress notes containing a record ©f aji 
services provided, directly afi4 by contract, 
v i ith e ntri e s dated aft4 signed by the indi 
vidual pro' i iding tfee sor i ico: aft4 

ff) discharge summary which includes a» 
overall summary ef ser . ices provided by 
Ae agency aH4 tbe date aft4 r e ason fof 
discharge. \\ ' 'hen a specific sor i 'ico to a 
patient is temiinatod aR4 other sop i iooo 
continue, there shall bt» documentation »f 
the (iate aft4 reason fof terminating Ae 
specific sor i ico. 

Statutory Authority G.S. I3IE-I40. 

SECTION .0900 - GENERAL 

.0901 DEFINITIONS 

The following defmitions will apply throughout 
this Subchapter: 

(1 ) ".-Vgencv director" means the person hav- 
ing administrative responsibiLitv for the op- 
eration of the home care agencv. 

(2) ''Department" means the North Carolina 
Department of Human Resources. 

(3) "Follow-up care" means sen'ices provided 
to a hcensed hospital's discharged patient in 
his home bv a hospital's employees, not to 
exceed two \isits to a patient. 

(4) "Go\eming body" means the person or 
.group of persons having full legal authority 
and ownership responsibility for the opera- 
tion ot^ the home care agency. 

(5) 'Home care agency" means a pri\'ate or 
public organization which provides home 
care services. 

(6) "Home care agency premises" means the 
ph\sical site where the home care agency 
maintains an\' staff peribrming administra- 
ti\'e functions, and maintains its personnel 



records, or maintains its client senice re- 
cords, or holds itself out to the public as 
being a location for receipt of client referrals. 
(7) "Home care scr\-ices" means any of the 
foUowing services and directly related med- 
ical supplies and appliances, which are pro- 
vided to an individual in a place of 
temporary or permanent residence used as 
an individuafs home: 

(a) Nursing care; 

(b) Physical, occupational or speech therapy, 
when provided to an indi\idual who also 
is receiving nursing senices, or anv other 
of these therapy services, in a place of 
temporary" or permanent residence used 
as the individual's home; 






Medical social senices; 



In-home aide ser\'ices that involve 
hands-on care to an individual; 
Infusion nursing services; and 

Assistance with pulmonarv care, 
pulmonary rehabilitation or \-entilation. 
The term docs not include the following: 

(i) health promotion, preventative health 
and community health services provided 
bv public health departments: 

(ii) maternal and child health services pro- 
vided by public health departments, bv 
employees of the Department of En\'i- 
ronmcnt. Health, and Natural Resources 
under Cj.S. 130A-124, or bv develop- 
mental evaluation centers under contract 
with the Department of Fn\ironment, 
Health, and Natural Resources to pro\ide 
services under G.S. 130A-124; 

(iii| hospitals licensed under .Vrticle 5 or 
Chapter 1 3 1 E of the General Statutes 
when providing foUow -up care initiated to 
patients within six months alter their dis- 
charge from the hospital; 

(iv) facilities and programs operated under 
the authority of G.S. 122C; 

(v) schools, when providing services pursu- 
ant to Article 9 of Chapter 115C; 

(vi| the practice of midwifery' bv a person 
licensed under .Article 1 0.A of Chapter 90 
of the General Statutes; 

(\'ii) hospices licensed under .Article 10 of 
Chapter 13 IH of the General Statutes 
when providing care to a hospice patient; 

(vm) an indi\idual who engages soleK in 
providing his own services to other mdi- 
\iduals; 

(ix) incidental health care pro\idcd bv an 
employee of a ph\ sician licensed to prac- 
tice medicine in North Carolina in the 
normal course of the physician s practice; 
or 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



1595 



PROPOSED RULES 



(x) nursing registries if the rcdstrs' discloses 
to a client or the client's responsible party, 
before pro\idin,g any scr\'ices, that: 

(A) It IS not a licensed home care aoency, 
and 

(B) it does not make any representations 
or guarantees concerning the trainmg, 
supen.'ision or competence of the per- 
sonnel pro\ided. 

(8) "Home health agency'' means an agency 
as defined in Chapter 131-136(4) of the 



General Statutes 



191 



'Home health aide" means an in-home 



aide quahfied to pro\ide services under a 
home health agency. 

( 10) "Infusion nursmg ser\'ice5" means those 
services related to the administration of 
pharmaceutical agents directly into a body 
organ or ca\ity. or yia the intravenous, 
intraspind. or epidural routes. 

(11) "In home aide services" are those 
paraprofessional services which assist the 
indi\idual. his family or both with essential 
home management tasks, personal care task. 
or supervision of the client's activities, or all 
of the abo\'e. to enable the mdividual. his 
family or both, to remain and function ef- 
fectively at home as long as possible. 

( 12) "Licensed practical nurse" means a person 
duly licensed as such, holdmg a current li^ 
cense as required by North Carolma statute. 

( 13) ".Medical social services" means those 
professional services provided to an individ- 
ual in his home bv a medical social worker, 
or bv a medical social worker assistant under 
the supervision of a medical social worker, 
when provided bv a home care agency in 
conjunction with other nursing or therapy 
services pro\'ided bv the same agency. 

( 14) ".Medical social worker" means a person 
with a master degree from a school of social 
uork approved bv the Council on Social 
Work Fducation who is 



_ ehable for certif- 
ication by the North Carolina Certification 
Board for Social Work as a Certified .Master 
Social Worker. 



(a) collects a fee from a nurse, in-home aide 
or person seeking the services when the 
fee is contingent upon the employment 
or use of a nurse or in-home aide from the 
list: or 

(b) arranges or coordinates the delivery of 
services provided bv a nurse or in-home 
aide from the list: or 

(c) supervises. e\'aluates or controls the pro- 
vision of services bv a nurse or in-home 
aide from the list. 

(17) "Nursing ser\'ices" means professional 
services provided bv a registered nurse or a 
licensed practical nurse under the super- 
vision of a registered nurse. 

(18) "Occupational therapist" means a person 
duly licensed as such, holding a current li- 
cense as required bv North Carolina statute. 

( 19) "Occupational therapist assistant" means 
a person duly licensed as such, holding a 
current license as required bv North 
Carolina statute. 

(2(1) "Occupational therapy services" means 
professional services pro\ided bv a licensed 
occupational therapist or a licensed occupa- 
tional therapist assistant under the super- 
vision of a licensed occupational therapist. 

(21) "Personal care" mcludes tasks that range 



istance to an individual with basic 



from 

personal hygiene, grooming, feeding and 
ambulation Xo_ medical monitoring and other 
health care related tasks. 

(22) "Physical therapist" means a person duly 
licensed as such, holdmg a current hcense as 
required bv North Carolma statute. 

(23) "Ph\ sical therapist assistant" means a 
person duly licensed as such holdmg a cur- 
rent license as required by North Carolina 
statute. 

(24) "Physical therapy services" means profes- 
sional services provided bv a licensed phvs - 



(15) "Medical social worker assistant" means (26) "Plan of care 
a person who has a baccalaureate degree in 
social work, psychology. sociQlog%'. or other 
field related to social work, and has had at 
least one vear of social vsork expenence. 

(16) "Nursing registry" means a person uho 
maintains a list of nurses or in-home aides 



ical therapist or a hcensed physical therapist 
assistant under the supervision ot a licensed 
physical therapist. 
(25) "Physician" means a person licensed as 
such, holding a current license as required 
by North Carolma statute. 

means the written de- 



scription of tfie authorized home care ser- 
vices and tasks \o_ be provided to a client. 
(27) "Pulmonarx' care . pulmonary rehabili- 
tation or ventilation sen'ices" means the 
provision of pulmonary support equipment 
and related service and includes, but is not 



or both v.'hich ;s made a\ailable to persons 
seeking nursing care or in-home aide ser- 
vices. A "nursing registry" does not include 
a registry kept bv a person who: 



limited to: 
aasses, or 



oximctrv , drawing of blood 



delu'epv' of 



aerosolization. and 



medications via 
management ot 



ventilatory support equipment. 



1596 



6:21 NORTH CAROLINA REGISTER Febiuaiy 3, 1992 



PROPOSED RULES 



"Registered nurse" means a person duly 
licensed as such, holding a current hcense as 
required by North Carolina statute. 

(29) "Respiratory therapist" means a person 
who is certified by the National Board for 
Respiratory Care. 

(30) "Social worker" means a person who 
meets the qualifications of the North 
Carolina OlTice of State Personnel for social 
workers. 



(31) "Speech pathologist" means a person duly 
licensed as such, holding a current license as 
required by North Carolina statute. 

(32) "Speech therapy" means professional ser- 
vices provided by a licensed speech 
pathologist. 

Statutory Authority G.S. I3IE-I40. 

.0902 LICENSE 

Home care agencies both pubhc and private 
shall be licensed in accordance with G.S. 
13 IE- 138, except those exempted in G.S. 
131E-136(3). Each home care agency premises 
shall obtain a license. 

Statutory Authority G.S. I3IE-I40. 

.0903 APPLICATION FOR AND ISSUANCE 
OF LICENSE 

(a) An application for the operation of a home 
care agencv shall be submitted to the Department 
prior to a license being issued. The home care 
agency shall establish, maintain and make avail- 
able for inspection such documents, records and 
policies as required in this Section and statistical 
data sufficient to complete the licensure applica- 
tion and upon request of the Department, to 
submit an annual data report, including all in- 
formation required bv the Department. 

(b) "1 he Department shall issue a license to 
each home care agency. 1 he type of initial and 
ongoing licensure inspections shall be at the dis- 
cretion of the Department, hiitial licensure shall 
be for a period of one year. Subsequent licensure 
mav extend up to three years for agencies that 
have demonstrated compliance with licensure or 
accreditation standards, t-'ach license shall expire 
at midnight on tlie expiration date on the license 
and i^ renewable upon application. 

(c) The license shall be posted in a prominent 
location accessible to public view within the 



premises. 

(d) The license shall be issued for the premises 
and persons named in the application and shall 
not be transferable. The name and street address 
under which the agencv operates shall appear on 
the license. I he license shall reflect the senices 



provided by the home care agency. For a home 
health agency, the license shall also reflect the 
counties in which the agency is authorized to 
provide home health services. 

(e) Prior to change of ownership or the estab- 
Hshment of a new home health agency, the 
agency must be in compliance with all the appli- 
cable statutes, rules and poUcies established un- 
der Article 9 of Chapter 131E. 

(f) Pnor to change of ownership of a home care 
agency, the agency must notify the Department. 

(g) Any agency adding a new .service category 
as outlined m G.S. 1 3 1 E- 1 36 (a)-(f) shall notify 
the Department in writing prior to the provision 
of that service to any clients. Ihe Department 
shall approve the added service prior to its im- 
plementation. 

(h) A home care agency shall notify the De- 
partment in writing if it discontinues or is unable 
to provide for a period of six continuous months 
any service category as outlined in G.S. 13IE-136 
(a)-(f) that is hsted on the agency's license. 

Statutory Authority G.S. I31E-I40. 

.0904 INSPECTIONS 

(a) /Vny home care agency licensed by the De- 
partment shall be subject to proper inspections 
by an authorized representative of the Depart- 
ment at any time as a condition of holding such 
license. 

(b) Any organization subject to licensure which 
presents itself to the public as a home care 
agency, which does not hold a license, and is or 
may be in violation of Rule .0902 of this Section 
and G.S. 13 IE- 138 shall be subject to proper in- 
spections at any time by authorized represen- 
tatives of the Department. 

(c) .Any authon/ed representative of the De- 
partment shall make his identity known to the 
person in charge pnor to inspection. 

(d) Inspection of service records shall be carried 
out in accordance with G.S. 131E-141(b). 



(e) An inspection shall be considered proper 
whenever the purpose of the inspection is to de- 
termine whether the agency complies with the 
provisions of this Subchapter or whenever there 
is reason to believe that some condition exists 
which IS not in accord with accepted public 
health standards and practices. 



the Statutory Authority G.S. I3IE-I40. 



.0905 MLLTIPLE PREMISES 

If a person operates multiple home care agency 
premises: 
( 1 ) the Department mav conduct inspections 
at any or all of the premises and shall issue 



6:21 NORTH CAROLINA REGISTER Febniaiy 3, 1992 



1597 



PROPOSED RULES 



a license to each site based upon a sample 
jnspectKin of any or all of the premises; 

(2) with ad\ance notice, the IJepartment may 
request records from any of the premises 
necessary to ensure compliance with the 
rules in this Section: and 

(3) the premises may share hands-on care stall 
or adiriinistrati\e stall, or centralize the 
maintenance of records, not withstandnm 
anNthins herein to the contrary. 



Statutory Authority G.S. I3IE-I40. 

.0906 COMPLIANCE WITH LAWS 

(a) The home care agency shaU be in compli- 
ance with all applicable federal, state and local 
laws. rLiles and reaulations. 



(b) Staff of the home care agency shall be cur- 
rently licensed or registered in accordance with 
applicable laws of the State of North Carolina. 

(c) A home care agency shall be deemed to 
meet the licensure requirements and issued a li^ 
cense without further reyiew or inspection jf^ 

( 1 ) the agency is already accredited by the 
Joint Commission on Accreditation of 
Health Care Organizations, National 



accrediting body. The agency shall notify the 
Department of any action taken that affects its 
accreditation status, either temporarily or per- 
manently. 

Statutory Authority G.S. I3IE-I40. 

.0907 AD\ ERSE ACTION 

Ihe Department may deny, suspend, revoke, 
recall or :unend a h cense in accordance with G.S. 
1311M39 for any home care agency which sig- 
niTicantly fails to comply with the rules contained 
in this Subchapter or which fails to implement 
an appro\ed plan of correction for deliciencies 
cited by the Department. A home care agency 
may appeal any ad\'erse decision made by the 
Department concerning its license by making 
such appeal in accordance with the Administra- 
tis'e Procedure Act. Ci.S. 15()B and departmental 
rules 1(J NC.AC IB .()2<I0 et seq. As pro\ided for 
in G.S. 131IM42. the Department shall seek 
iniuncti\e relief to pre\ent an entit\ from estab- 
lishing or operating a home care agcnc\ without 
a license. As provided for in Ci.S. 13 lb- 141. 1, a 
person is guilty of a misdemeanor and subject to 
lines for knowing.l\' and wiUfulh" establishing or 



■; f — r~ ■" V , Tii ~~ — T^ — operating a home care agency without a license. 

1 eague tor .Nursing. National Home Car- — ' • ■ • 



ing Council or North CaroUna Accredi- 



tation Commission for In-Home Aide 
Services: and 

(2) the agency is accredited for all of the home 
care services that h provides: or 

(3) in the case of continuing care treatment 
communities licensed by the North 
Carolina Department of Insurance under 
Article 64 of Chapter 5S which also have 
nursing beds hccnsed by the Department 
under Article 6 of Chapter 131H, the De- 
partment certifies, as part of its licensure 
re\iew or survey of the nursing beds, that 
the lacilitN" also meets all of the rules and 
regulations in this Subchapter. 

The Department may, at its discretion, determine 
the frequency and extent of the resiew and in- 
spection of home health agencies already certified 
as meeting federal requirements, but not more 
trequently than on an annual basis for routine 
re\iews. 

(d) Nothing in this Section shall prohibit the 
Department Irom conducting inspections as pro- 
\ided for in Rule .(»()4 ot" this Section. 

(e) .Any agency deemed to be in compliance 
by \ irtue ot accreditation by one of the specified 
accrediting bodies listed in this Rule shall submit 
to the Depailment a cop\ of r[s accreditation re- 
port within 30 da\s after the home care agency 
receives its report each time \\_ is sur\-eyed by the 



Statutory .Authority G.S. I3IE-I40. 

SECTION .1000 - ADMINISTRATION 

.1001 AGENCY M.\NAGEMENT AND 
SLPERMSION 

(a) The governing body or its designee shall 
establish written pohcies gcneming agenc\ oper- 
ation. Such pohcies shall be available for m- 
spection by the Department. The policies shaU 
include, at the minimum, provision for the eval- 
uation of the quahtN' and scope of ser\ices of- 
fered, admission and discharge policies, 
supervision and plan of care. emergencN care, 
service records, personnel qualifications, an or- 
ganizational chart, program evaluation, and co- 
ordination of and referral to and from other 
community resources. 



(b) 1 he home care agenc\' shall designate an 
individual to serve as agency director. The 
agency director shall have the authontv and re- 
sponsibility for administrative direction of the 
home care agency. 

(c) I he home care agency shall designate a 
professional responsible tor supervising each type 
of home care service provided by the agency ei- 
ther directly or by contract. Iliis indiv idual may 
be the supervisor for one or more htnne care 
services and may also serve as the agency direc- 
tor. 



159S 



6:21 P\ORTH CAROLINA REGISTER Febnuiry 3, 1992 



PROPOSED RULES 



(d) There shall be written documentation that 
specifies the responsibilities and authority of the 
agency director and supervisQr(s). 

(e) If the position of agency director becomes 
vacant , the Department shall be notified within 
one week in wnting of such vacancy along with 
the name of the replacement, if available. 

(f) The agency shall have the ultimate respon- 
sibility for the services provided under its license; 
however, it may make arrangements with con- 
tractors and others to provide services in accord- 
ance with Rule .1111 of this Subchapter. 

(g) A home care agency shall have written 
policies which identify the specific geographic 
area in which the agency pro\idcs each service. 
For home health agencies, these geographic area 
policies shall be consistent with the certiticate of 
need restrictions on geographic area for the 
agency's home health agency cUents. 



(b) Written policies shall be established and 
implemented which include orientation and in- 
ser^'ice education. Records on the subject of in- 
service education and attendance shall be 
maintained by the agency and retained for at least 
one year. 

(c) Job descriptions for every position shall be 
estabhshed in wnting which include qualifica- 
tions and specific responsibilities. Individuals 
shall be assigned only to duties for which thev 
are trained and competent to perform and when 
apphcable for which thev arc properly Ucensed. 

(d) Personnel records shall be established and 
maintained for each home care employee which 
include education, training, previous experience, 
verification of professional or paraprofcssional 
registration or license when applicable, other 
qualifications, and annual peribrmance e\alu- 
ations. 



Statutory Authority G.S. I3IE-I40. 



Statutory Authority G.S. I HE- 140. 



.1002 FINANCIAL AND STATISTICAL 
RECORDS 

(a) The home care agency shall establish, 
maintain and make available for inspection, 
home care annual budact and statistical records. 



(b) The records shall include information on 
the agency's home care staff, client demograph- 
ics, payment sources and other statistical data as 
required for the operation of the agency or by the 
Department. 

(c) Records shall be retained for a period of not 
less than three years. 

(d) When a home care agency operates as a 
part of a health care facility licensed under Article 
5 or 6 of Cj.-S. 131 1-", or as a part of a larger di- 
versified agency, records of home care activities 
and expenditures that are separate and identiti- 
able shall be maintained for the home care 
agency. 

Statutory Authority G.S. I3IE-I40. 

.1003 PERSONNEL 

(a) Written poUcies shall be established and 
implemented bv the agency regarding infection 
control and exposure to communicable diseases. 
All hands-on care employees must follow the 
current Center for Disease Control and O.SHA 
guidelines tor infection control and must ha\e an 
annual skin test for IB. As an alternative to an 
annual skin test, individuals who have previously 
tested positive to the TB skin test may obtain an 
annual verification from a health department or 
physician that the indi\idual is free of IB svmp- 
toms. 



.1004 EVALLATION 

(a) The home care agency's governing body or 
its designee shall, at least annually, conduct a 
comprehensive e\aIuation of the home care 
agency's total operation. The evaluation shall 
assure the appropriateness and quality of the 
agency's services with findings used to verify 
policy implementation, to identify problems, and 
to establish problem resolution and policy re- 
vision as necessarv^ 

(b) The evaluation must consist of an o\'erall 
policy and administration review, including the 
scope of serv'ices offered, arrangements for ser- 
vices with other agencies or individuals, admis- 
sion and discharge policies, supervision and plan 
of care, emergency care, service records, person- 
nel qualifications and program e\aluation. Data 
to be assessed shall include the following as a 
minimum: 



Li) 
01 



number of cUents receiving each services: 



number of \'isits or hours for each service; 



CS) client outcomes; 

(4) adequacy of staff to meet client needs; 

(5) numbers and reasons for nonacceptance 
of cUents, and 

(6) reasons for discharge. 

(c) An evaluation of the agency's client records 
shall be earned out at least quarterK' by appro- 
priate professionals representing the scope of the 
agency's program. The evaluation shall include 
a review of sample active and closed client re- 
cords to ensure that aizency pohcies are foUc 



in providing services, both direct and under ar- 
rangement, and to assure that the quality of ser- 
vice is satisfactory' and appropriate. The review 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



1599 



PROPOSED RULES 



shall consist of a representative sample of all 
home care sen'ices provided by the agency. 

(d) Documentation of the evaluation shall in- 
clude the names of persons carryin.i^ out the 
evaluation, the cntcria and methods used to ac- 
complish it and the action taken bv the agency 
as a result of the findings. 



Statutory Authority G.S. 13IE-140. 

.1005 HOSPICK CARE 

If a home care agency otYers or provides a 
hospice program of care, such services shall be in 
compliance with aU pro\'isions ot Jj) NCAC 31 
(Hospice Licensing Rules), with the exception 
ol rules requiring a separate h'o spice License. 
Should the home care agency's hospice program 
be found in non-compliance with the hospice 
licensure rules and statutes, that shall be a vio- 
lation of their home care agency license. Adverse 
action shall be taken in accordance with Section 
.(J'-)()() of this Subchapter and injunctive relief may 
be sought in accordance with North Carolina 
General Statute 131^-206. 



Statutory Authority G.S. I3IE-I40. 

.1006 NURSING POOL 

If a home care agency offers or pro\'ides a 
nursing pool, and does not wish to obtain a sep- 
arate license for its nursing pool, such services 
shaU be in compliance with all provisions of 10 
NCAC 3V (Nursing Pool I icensing Rules), with 
the exception ot^^ rules requiring a separate nursing 
pool license. Should the home care agency's 
nursing pool be found in non-compliance with 
the nursirig pool licensure rules and statutes, that 
shall he a \iolation cA their home care agency 1> 
cense. .Adverse action shall be taken in accord- 



ance with Section .1)900 of this Subchapter and 
iniunctive rehef mav be sought in accordance 
with North Carolina Cieneral Statute 131I:-206. 



Statutoty Authority G.S. 1 ME- 140. 

.1007 CLIENT RIGHTS AND 
RESPONSIBILITIES 

(a) A home care agency must provide each cli- 
ent with a wntten notice of the client's rights and 
responsibihtics in advance ot^ lumiNhing care to 
the client or during the initial evaluation \'isit 
before the initiation of sen.ices. Ihe agency 
must maintain documentation showing that each 
client has received a copy of his nghts and re- 
sponsibilities. 

(b) Ihe notice must include at a minimum the 
client's right to: 



(1) be informed and participate in his plan of 
care; 

(2) voice grievances about his care and not 
be subjected to discrimination or reprisal 
for doing so; 

(3) confidentiahty of his records; 

(4) be informed of his liabihty for payment for 
services; and 

(5) accept or refuse services. 

(c) A home care agency shall provide all clients 
with a telephone number for information, 
questions or complaints about scr\ices provided 
bv the agency. 

(d) A home care agency shall investigate com- 
plaints made bv a client or his family, and must 
document both the existence ot the complaint 
and the resolution of the complaint. 

Statuton .Authority G.S. I31E-140. 

SECTION .1 100 - SCOPE OF SER\ ICES 

.1 101 ACCEPTANCE OF CLIENTS 

The home care agency shall implement and fol- 
low wntten policies governing the acceptance of 
clients. Considerations relevant to the accept- 
ance of clients include: 

( 1) adequacy and suitability of agency person- 
nel and resources to provide the senices re- 
quired bv the chent: 

(2) reasonable expectation that the chcnt's 
medical, nursing, personal, and social needs 
can be met adequately at home; 

(3) adequate physical facilities in the client's 
home for his plan of care: and 

(4) availabiUty or absence of family or substi- 
tute family member able and wiUing to par- 



ticipate in the client's care where necessary 
to ensure the safety of the client. 

Statutory Authority G.S. I3/E-I40. 

.1 102 NURSING SERVICES .AND DUTIES 

(a) If an agency provides nursing services, such 
services shall be provided bv or under the super- 
vision of a registered nurse and in accordance 
with the North Carolina Nurse Practice Act, G.S. 
Chapter %. .Article 9A. and the plan of care. 

(b) Registered nurse duties include the follow- 
ing as a minimum: 

( 1) regularly assess the nursing needs of the 
client; 

(2) develop and implement the client's nursing 
plan of care: 

(3) provide nursing services, treatment, and 
diagnostic and preventive procedures: 



1600 



6:21 NORTH CAROLINA REGISTER Eebruary 3, 1992 



PROPOSED RULES 



(4) initiate preventive and rehabilitative nurs- 
ing procedures appropriate for the client's 
care and safety; 

(5) observe signs and symptoms and report to 
the physician any reaction to treatment, 
drugs, or changes in the chent's physical 
or emotional condition: 



(6) teach, supervise, and counsel the client and 
family members about providing care for 






the client at home; and 
super\'ise and train other nursing service 
personnel- 
Licensed practical nurse duties are per- 
formed under the supervision of a registered 
nurse and include the following as a minimum: 

( 1) observe, record and report to the supervi- 
sor on the general physical and mental 
condition of the chent; 

(2) administer prescribed medications and 
treatments; 

(3) assist the physician or registered nurse in 
performing specialized procedures; and 

(4) assist in teaching the cUent and family 
members about providing care to the cli;^ 
ent at home. 

(d) If an agency provides nursing services, the 
agency shall provide, at least, on-call nursing 
services on a 24 hour basis, seven davs a week. 

Statutory Authority G.S. 131 E- 1 40. 

.1 103 F'HVSICAL TFiER.\PY SERVICES 

(a) If an agency provides ph\sical therapy ser- 
vices, such services shall be provided by or under 
the supervision of a licensed physical therapist 
and in accordance with G.S. Chapter 90, Article 
18B, Physical Therapy, and the plan of care. 

(b) Physical therapy duties include the follow- 
ing as a minimum: 

( 1) assess the chent to determine level of 



(21 
13) 

Hi 
15) 



physical function; 
estabhsh and implement physical therapy 
treatment plan; 

observe, record, and report to the physi- 
cian any reaction to treatment or changes 
in the client's condition; 



instruct the tamilv in the client's total 
physical therapy program; and 

instruct family members, m-home aides 
and other health team personnel in per 
forming appropriate therapy treatment 



Statutory Authority G.S. /3/E-/40. 

.1104 SPEECH THER.\PY/P.\THOLOGY 
SERMCES 

(a) If an agency provides speech therapy, or 
services in speech pathology or audiologv such 



services shall be provided in accordance with 
G.S. Chapter 90, Article 22, North Carohna 
Licensure Act for Speech and Language 
Pathologists and Audiolodsts and the plan of 
care. 

(b) Speech pathologist duties include the fol- 
lowing as a minimum: 

( 1) assess chcnts yvith speech, language, voice, 
dysphagia, and or hearmg disorders; 

(2) establish and implement the speech ther- 
apy treatment plan; 

(3) record and report to the physician any re- 
action to treatment and changes m the 



chent's condition; 



(41 



15) 



teach other health team personnel and 
family members teclmiques to help im- 
prove and correct the chent's speech, lan- 
guage, voice, dysphagia, and/or hearing 
potential: and 

counsel the chent and family about the 
chent's speech, language, voice, dysphagia, 
and or hearing disabilities. 



Statutory Authority G.S. I3IE-140. 

.1 105 OCCLP.ATIONAL THERAPY SERVICES 

(a) If an agency provides occupational therapy, 
such services shah be provided in accordance 
with G.S. Chapter 90, Article 18D, Occupational 
Therapy and the plan of care. 

(b) Occupational therapist duties include the 
foUowing as a minimum: 

( 1) assess the chent's functional abihty to 
perform acti\ities of daily hving; 

(2) establish and implement the occupational 
therapy treatment plan; 

(3) observe, record, and report to the physi- 
cian any reaction to treatment and any 
changes in the client's condition; 

(4) instruct family members, in-home aides 
and other health team personnel in ap- 
propriate therapy methods: and 

(5) design, develop and fit orthotic de\'ices and 
setf-help devices. 

Statutory Authority G.S. I31E-I40. 

.1 106 MEDICAL SOCIAL WORK SERVICES 

(a) If an agency provides medical social work 
services, such services shall be provided by or 
under the supcr\ision of a medical social worker 
and in accordance with the plan of care. 

(b) Medical social work services include the 
following as a minimum: 

( 1) assist the physician and other members of 
the health team in understanding the sig- 
nificant social and emotiond factors re- 
lated to the chent's health problems; 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



1601 



PROPOSED RULES 



(2) assess social and emotional factors in order 
to estimate the client s capacity and po- 
tential to cope with problems of daily liv- 
ing; 

(3) help the client and family to understand, 
accept, and follow medical recommen- 
dations and proside ser\ices plarmed to 
restore the client to optimum social and 
health adjustment within his capacity; 

(4) assist the client and famih' with personal 
and en\'ironmcntal ditticulties which 
predispose toward illness or mterfere with 
the client obtainioi; maximum benefits 
from mediccd care: and 

(5) assist the client and famih' in the utiliza- 
tion of appropriate community resources. 

Stdiuton Authority G.S. 1 31 E- 140. 

.1 107 IN-HOME .MDE SERVICES 

(a) If an aaencv provides in-home aide sen.'ices, 
the services shall be pro\'ided in accordance with 
the plan of care. 

(b) In-home aides shall follow instructions for 
client care written by the professional required 
for the ser\'ices pro\ided. In-home aide duties 
include, but are not limited to the following: 

help with prescnbed exercises which the 
client and in-home aides ha\"e been taught 
by appropnate professional personnel: 
pro\ide or assist with personal care (i.e.. 
bathing, care of mouth, skm and hair); 
assist with ambulation: 



lii 



til 



assist with medications which are ordinar- 



^) 



t6i 



ilv seLf-administered and which are or- 
dered by a ph\sician: 

perform incidental household ser\'ices 
which are essential to the client's care at 
home: and 

record and report changes m the client s 
condition, famiK situation or needs to the 
appropnate health care professional. 



Statutoiy Authority G.S. 131 E- 140. 

.1108 INFUSION NURSING SERVICES 

(a) If an agency pro\ides infusion nursing ser- 
\ices. the scrT.'ices shall be pro\ided bv or under 
the supervision of a registered nurse and in ac- 
cordance with the North Carolina Nurse Practice 
Act. Cj.,S, Chapter ^0. .Article ^).A. and a plan of 
care signed bv a ph\sician. 

(b) Infusion nursing duties include the follow- 
ing as a minimum: 

( 1 ) evaluate the client's health and 
psychosocial needs: 

(2) regularly assess the nursing needs of the 
client: 



(3) develop and implement the client's in- 
fusion nursing plan of care; 

(4) teach and tram the client or care.giver to 
administer drugs to the client, where ap- 
plicable; 

(5) observe, assess and provide nursing care 
to the client's administration site; and 

(6) directly administer medications to the cli- 
ent. 

(c) If an agency provides or arranges for in- 
fusion nursing services, the agency shall provide, 
at least. on-caU infusion nursing services on a 24 
hours basis, seven days a week. 

Statutory .Authority G.S. 1 31 E- 140. 

.1109 PI I.MON.\RV, PULMONARY 

REHABILITATION OR \ ENTILATION 
SERVICES 

(a) If aji agency provides pulmonary, 
pulmonary rehabilitation or ventilation services, 
the services shall be provided by or under the 
superMsion of a respiratory' therapist or a regis- 
tered nurse under a plan of care signed bv a 
physician. 

(b) Pulmonary', pulmonary rehabilitation or 
ventilation services may include the following: 

( 1) assess the client's need for oxygen, other 
medical gasses and related equipment; 

(2) teach and tram client or caregivers to self- 
administer medical gasses or respiratorx' 
procedures: 

(3) teach and train client or caregivers about 
home safety related to medical gasses and 
equipment: 

(4) collect laboratory' specimens: and 

(5) evaluate functioning of ventilatory support 
equipment. 

(c) If an agency provides these services, the 
agency shall pro\ide. at least, on-call respirator.' 
care emergency response on a 24 hour basis. 
seven days a week. 



Statutory Authority G.S. 131 E- 140. 

.1110 SUPERMSION OF COMPETENCY 
OF IN-HOME AIDES OR OTHER 
PERSONNEL 

(a') In-home aides or other allied health per- 
sonnel subject to occupational licensing layvs 
shall meet competency testing requirements con- 
sistent with the appropnate occupational licens- 
ing laws and regulations. These individuals shall 
be supenised bv an appropnate health care pro- 
fessional. 

(b) In-home aides or other allied health per- 
sonnel who are not subject to occupational li^ 
censmg laws shall only be assigned duties for 
which they have demonstrated competency. 



1602 



6:21 SORTH CAROLINA REGISTER Febniary i, 1992 



PROPOSED RULES 



These individuals shall be supervised by an ap- 
propriate professional or a competent, appropri- 
ately trained paraprofessional who is supervised 
by an appropnate professional. 

(c) The appropriate supervisor as specified in 
Paragraph (a) or (b] in this Rule shall supervise 
an in-home aide or other aUied health personnel 
by making a supervisory visit to the client's place 
of residence at least every three months, with or 
without the in-home aide's or other allied health 
personnel's presence, and at least annually, while 
the in-home aide or other aUied health personnel 
is providing care to the cUent to assess the care 
and services being provided. 

(d) Documentation of supervisory visits shall 
be maintained in the agency's records. 

(e) The home care agency must have contin- 
uous supervision available, on-site where services 
are provided when necessary, during the hours 
that in-home aide services are provided. 

Statutory Authority G.S. B IE- 1 40. 

.1111 ARRANGEMENTS FOR SERVICES 
WITH OTHER AGENCIES OR 
INDIVIDUALS 

(a) When a home care agency makes arrange- 
ments for providing services through other agen- 
cies or individuals, or where the home care 
agency contracts with a state or county agency 
to provide licensed home care services^ there shall 
be a written agreement, signed by both parties 
which includes the following: 

( 1) S£eci& service to be grovided^ 

(2) period of time the contract is to be in ef- 
fect; 

(3) availability of services; 

(4) responsibility for de\elopment of the plan 
of care prior to notification of the chent; 

(5) financial arrangements; 

(6) veriiication that any individual providing 
service is appropriately licensed or regis- 
tered as required by statute; 
provision for supervision of contract per- 
sonnel where apphcable; 
assurance that individuals providing ser- 
vices under contractual arrangements 
meet the same requirements as those 
specified for home care agency personnel; 
and 

provision for the documentation of ser- 
vices rendered in the client's service re- 
cord. 



tzi 

[81 

121 

(b) All contract ser\-ices shall be provided in 
accordance with the chent's plan of care. 

(c) The home care agency shall assure that all 
contract services are provided in accordance with 
the agreement. 



Statutory Authority G.S. 1 31 E- 140. 

SECTION .1200 - CASE REVIEW AND PLAN OF 
CARE 

.1201 POLICIES 

A home care agency shall have written policies 
and procedures for assuring that services and 
items to be provided are specified under a plan 
of care. 

Statutory Authority G.S. 13IE-140. 

.1202 CASE REVIEW AND PLAN OF CARE 

(a) Thie plan of care is established in collab- 
oration with the client and incorporated in the 
service record. The plan of care must be regu- 
larly reviewed at least every three months by the 
appropriate agency professional and revised as 
needed based on the chent's needs. If physician 
orders are needed for the services, a home care 
health professional shall notify the phvsician of 
changes in the chent's condition which indicate 
the need for altering the plan of care or for ter- 
minating scr\-ices. Based upon the fmdings of the 
client assessment, the plan of care shall include 
as a minimum: 

(1) type of service (s) required; 

(2) frequency of visits or hours of service; 

(3) activity restrictions; 

(4) safety measures; and 

(5) ser^'ice objectives and goals. 

(b) Where apphcable, the plan of care includes, 
but is not limited to: 

( 1) equipment required; 

(2) functional limitations; 



(3) rehabiUtation potential; 

(4) diet and nutritional needs; 



til 
161 
IZl 
181 



medications and treatments; 



specific therapies; 

pertinent diagnoses; and 

prognosis. 

(c) So long as ongoing hands-on care is being 
provided to a chent, a registered nurse, social 
worker or other appropriate professional shall 
\'isit the client in his residence at least quarterly 
to access the chent's general condition, progress 
and response to ser\'ices provided. Documenta- 
tion of these \isits shall be maintained in the cli^ 
ent's service record. 



(d) If the same professional is assigned respon- 
sibility for two or more of the following, these 
lunctions may be 
home visit: 

(1) quarterly assessment of client's condition 
and response; 



conducted during the same 



6:21 NORTH CAROLINA REGISTER Eebniaiy 3, 1992 



1603 



PROPOSED RULES 



(2) provision of regularly scheduled profes- 
sional services; or 

(3) super\ision of in-home aide or other allied 
health personnel. 

Statutory Authority G.S. I3IE-I40. 

SECTION .1300 - PIIARMACFXTICALS AND 
MKDICAL TREATMENT ORDERS 

.1301 POLICIES AND PROCEDl RES 

If the home care agency administers any phar- 
maceuticals or medical treatments, it shall have 
policies and procedures relative to the adminis- 
tration of drugs and treatments. 

Statutory Authority G.S. I31E-I40. 

.1302 ORDERS 

(a) Orders for pharmaceuticals and medical 
treatments shall be signed by the physician or 
other person authorized by State law to prescribe 
such treatments and the original incorporated in 
the client's service records. 

(b) Verbal orders for the administration of 
pharmacological agents and other medical treat- 
ment uiterventions shall be given to a hcensed 
nurse, recorded and signed by the person receiv- 
ing it and countersigned by the physician or other 
person authon/.cd by State law to prescnbe 
within two weeks. 

(c) Verbal orders for allied health services other 
than nursing shall be gi\'en to either a hcensed 
nurse or the appropriate health professional, re- 
corded and signed by the person receivmg it and 
countersigned bv the physician or other person 
authorized by State law to prescnbe within two 
weeks. 

Statutory .Authority G.S. 1 31 E- 140. 

.1303 STAFF RESPONSIBILITY 

(a) If a home care agency administers any 
pharmaceuticals or medical treatments, agency 
licensed nursing statT shall be responsible for 
checking all medications and shall be spccificallv 
accountable for: 

( 1) recognizing side effects; 

(2) recognizing toxic effects; 

(3) recognizing allergic reactions; 

(4) recognizing immediate desired effects; 



(51 
(61 



recognizing unusual and unexpected ef- 
fects; 
recognizing changes in the client's condi- 



tion that contraindicates continued ad- 
ministration of the medication; 



(8) notifying the physician of any problems, 
(b) Agency hcensed nursing staff' shall instruct 
the client and family members as necessary in 
following the drug regimen prescribed by the 
physician or other person authorized by State law 
to prescribe such regimens. 

Statutory Authority G.S. 13 IE- 140. 

SECTION .1400 - SERVICE RECORDS 

.1401 REQUIREMENT 

(a) The home care agency shall maintain a 
service record for each chent receiving services. 

(b) The agency shall assure that service records 
are kept confidential and secure on the licensed 
premises. 

(c) Service records shall be retained for a period 
of not less than ti\^e years from the date of the 
most recent discharge of the cUent. 

Statutory Authority G.S. I3IE-I40. 

.1402 CONTENT OF RECORD 

(a) If the home care agency is not providing 
services to a chent which require a physician's 
order, the service record shaU contain the fol- 
lowing information as a minimum: 



( 1) .Admission data: 

(A) identification data (name, address, tele- 
phone number, date of birth, sex, marital 
status, social secuntv number); 

(B) names of next of kin and/or legal 
guardian; 

(C) names of other family members; 

(D) source of referral; and 

(E) assessment of home environment. 

(2) Service data: 

(A) initial assessments bv appropriate pro- 
fessional of the client's functional status 
in the areas of social, mental, physical 
health, environmental, economic, activ- 
ities of daily li\'ing and instrumental ac- 
tivities of daily h\ing; 



(B) identitlcation of problems, the estab- 
lishment of goals and proposed inter- 
\ention; 



(7) anticipating those effects which may rap- 
idly endanger a client's life or well-being; 
and 



(C) a record of all services provided, directly 
and bv contract, with entries dated and 
signed by the indi\-idual proxiding the 
service; 

(D) discharge summary' which includes an 
o\erall summary of services pro\'idcd bv 
the agenc\' and the date and reason tor 
discharge. When specific service to a cH^ 
ent IS terminated and other services con- 
tinue. there shall be documentation of the 



1604 



6:21 NORTH CAROLINA REGISTER Febniary 3, 1992 



PROPOSED RULES 



date and reason for terminating the spe- 
cific service; and 
(E) evidence of coordination of sen'ices 
when the client is receiving more than one 
home care service, 
(b) If the home care agency is providing ser- 
vices to a client which require a physician's order, 
the service record shall include as a minimum aU 
of the items described in Paragraph (a) of tliis 
Rule and the following items: 

( 1) Admission data: 

(A) admission and discharge dates from 
hospital or other institution when appli- 
cable; and 

(B) names of phvsician(s) responsible for 
the client's care. 

(2) Service data: 



(A) chent's diagnoses; and 

(B) physician's orders for pharmaceuticals 
and medical treatments. 

Statutory Authority G.S. I31E-I40. 

■k-k-k-k-k************* 



ly ot/ce is hereby given in accordance with G.S. 
I50B-21.2 that the Social Services 
Commission! Division of Facility Services intends 
to amend rule(s) cited as 10 NCAC 46H .0203, 
.0204, .0301, .0304, .0305 and .0306 and repeal 
rule(s) cited as 10 NCAC 46H .0205 and .0303. 

1 he proposed effective date of this action is July 
I. 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on March 4, 1992 at the Disability Determi- 
nation Building, Room 1 , 322 Chapanoke Rd., 
Raleigh, NC. 



Re 



treason for Proposed Action: Re\ise income el- 
igibility and fee tables for subsidized child day 
care. 

(^ omment Procedures: Comments may be pre- 
sented in writing any time before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of 
these ndes by calling or writing to Donna Creech. 
Division of Social Services, 325 N. Salisbury 
Street. Raleigh, NC 27611, 919/733-3055. 

CHAPTER 46 - D.W CARE RLLES 

SUBCHAPTER 46H - POLICIES FOR 
PROVISION OF CHILD DAY CARE SERVICES 



SECTION .0200 - ELIGIBILITY FOR SERVICES 

.0203 INCOME ELIGIBLE STATUS 

(a) For the purpose of the rules in this Sub- 
chapter, the term "income unit" shall apply to 
persons who reside in the same household and 
who, according to North Carolina law, are re- 
sponsible for the fmancial support of the indi- 
vidual whose eligibility for child day care services 
is being determined. Also for the purjx)se of 
determining eUgibility for day care services, the 
terms "income unit" and "family" are used 
interchangeably in the rules in this Subchapter. 

(b) When the amount of income available to 
an individual is a condition of eligibihty for child 
day care services, it is necessary to determine the 
number of persons in the individual's income 
unit and the amount of the gross income avail- 
able to the income unit. 

(1) The number of individuals in the income 
unit is referred to as the "income unit 
size" or "family size". These terms are 
used interchangeably in the rules in this 
Subchapter. 

(2) The total amount of the income used to 
determine day care eligibility is referred to 
as the "gross income of the income unit" 
or "family income". These terms are used 
interchangeably in the rules in this Sub- 
chapter. 

(c) Child day care ser\ ices may be provided to 
individuals other than those described in 10 
NCAC 46D .0103(e) and in Rules .0202 and 
.0206 of this Subchapter provided the gross 
monthly annual income of the individual's in- 
come unit does not exceed the state's ootabUohod 
maximum income eligibihty limit (as defmed in 
Rule .0204 of this Subchapter) for the number 
of persons in that income unit. 

(d) The following are defmed as separate in- 
come units for the purposes of determining eligi- 
bility and cUent fees for child day care ser%ices: 

(1) Biological and adoptive parents and their 
minor children. 

A minor parent and his or her children. 
Each adult whether related or unrelated, 
other than spouses. 

Each child living with anyone other than 
their biological or adoptive parents. 
Income to be considered when computing 
the gross income of the income unit is listed in 
the Division of Social Scr\ices' Farmlv Ser\ices 
Manual, as descnbed m 10 NCAC 35A .0003. 

Statutory Authority G.S. 143B-153. 

.0204 INCOME ELIGIBILITY LEVELS 



(2) 
(3) 

(4) 

(e) 



6:21 NORTH CAROLINA REGISTER February i, 1992 



1605 



PROPOSED RULES 



fh» OGtabliiihod annual incom e » oixtoon thou 
sand H¥e- hundred aft4 fifty tv i o dollaro (116,352) 
fof a family ©f fo«f aft4 » adju ' jt(>d accordingly 
to accommodato difToront «»» familioc 

(a) The maximum gross annual incomes for 
elidbilitv for subsidized child dav care services, 



adjusted for family si/e. shall be no lower than 
as follows; 



Family Si/e 

2 
3 

4 
5 
6 

7 

8 or more 



Gross Annual Income 
$ 9,336 
S12,W6 
S14,184 
$18.000 
$19,380 
$22,284 
$24.000 
$26,004 



Family Services .Manual, Volume I^ 
Chapter H; 
(5) when a child with no income is living with 
someone other than his or her biological 
or adoptive parent or is living with some- 
one who does not ha\'e court-ordered h- 
nancial responsibility. 
(b) I-xcept as provided for in Paragraph (a), the 
chent shall be assessed a fee for child day care 
ser\'ices. >S ' h e n t4*# family'o groon monthly ift- 
come i^ bot' i ' . 'oun 64 percent aft4 -Wtt porcont »f 
the otato'f i ootabhL i hod income fof thoir family 

fe) S e parate fee* may fe>e charged fof the trano 
portation component wh e n provid e d t» individ 
aafe whooe grcja monthly income is i>0 porcont 
ef greater »f the state's established income fof 
this familv siaer 



(b) The maximum gross annual incomes for 
eligbUitN for subsidized child day care services 
shall not be higher than 75 °o of the state median 
income, adjusted for lamil\ si/e. 

(c) Income hmits shall be increased only when 
state or federal funds are a\ailable subject to the 
appro\al of the Oflice of State Budget and Man- 
agement. 

Statutory Authority G.S. J43B-/53. 

.0205 MAMMLM INCOME LE\ ELS 

Child dav «tfe senices may be prc i ided to ift- 
disiduals whose gross monthly family incom e 
does ftet- exceed 44© percent »f t^ state's estab 
lished income fef a family »f that ^-i^r 

Statutory Authority G.S. 1 433-/ 53. 

SECTION .0300 - CLIENT FEES FOR CHILD 
DAY CARE SERMCES 

.0301 GENERAL FEE POLICY 

(a) No fees will be charged to the chent when 
child da\' care ser\'ices are provided to individuals 
in the followmg circumstances: 

(1) recipients of aid to famdies for dependent 
children payments; 

(2) recipients of supplemental security mcome 
benefits; 

(3) children receiving day care services in 
conjunction with protective ser\ices as 
descnbed in 10 NC.AC 35E .0106, up to 
a maximum of 12 months from the time 
protccti\e services is initiated; 

(4) when day care services are provided as a 
support to a child receuing Child Welfare 
Ser\ices as descnbed in the North 
Carolina Di\"ision of Social Services 



Statutory Authority G.S. I43B-I53(2a). 

.0303 MAXIMUM FEE CHARGES 

44*e fee schedules adopted l*y the Social Senices 
Commis ^. ion shall provid e fo* a maximum 
amount V i hich may be charged a family h* total 
fees dunng aay efte month. The schedul e ef 
maximum fee* shall be adjusted according te^ 
family s«e aftd income. 

Statutory Authority G.S. I43B-153. 

.0304 ADJUSTMENTS IN FEES 

(a) When child day eaje ser . 'ic e s k afe provided 
t» mor e than efte member »f the same family, the 
fast child '. ened is charged the foW feer the second 
child s e rv e d » charged teft percent &f the feet e ach 
additional child is charged ftve percent ef the feer 
Wbien child day care services are provided to 
more than one member of the same family, the 
parent shall be charged the full fee for the first 
child. The fee charged for each additional child 
shall be fifty percent of the fee for the first child. 

(b) If family medical expenses exceed ten per- 
cent of the family's gross income in an\' eligibility 
period, the amount of the expenses which exceed 
the gross income shall be deducted from the gross 
income. The reduced income shall be used to 
determine the amount of the fees to be assessed 
the famil\ for child day care senices. 

(c) When the approved care plan is for less than 
full-day care, the assessed fee for the service is 
adjusted by the appropriate percentage relati\e to 
the appro\ed care plan. 

Statutory .Authority G.S. I43B-153. 

.0305 MINIMU.M FEE CHARGES 



1606 



6:21 NORTH CAROLINA REGISTER Eebniary 3, 1992 



PROPOSED RULES 



Fee charges wiH to the client may be disregarded 
when the total amount due is less than five dol- 
lars ($5.00) per month. 

Statutory Authority G.S. I43B-I53. 

.0306 COLLECTION OF FEES 

Roimburcomont te A« county department &f 
Gooial Gor^^ic e s »f other provider wiii be t e rmi 

as throe conoocutivo months without foli pay 
mont ef the foe 4«e fof provioion ©f that- Genico. 
Collection of fees assessed to the client shall be 
the responsibility of the child day care provider. 

Statutory Authority G.S. I43B-153. 

■k-k-k-k-k-k*-k-k**-k****-k-k 



i\otice is hereby given in accordance with G.S. 
I50B-2I.2 that the Social Services 
CommissionI Division of Social Services intends to 
amend rule(s) cited as 10 NCAC 39D .0401 and 
.0403; 10 NCAC42B .1201, .1206 and .1207; 10 
NCAC 42C .2302, .3103 and .3104. 

J he proposed effective date of this action is May 
1, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on March 4, 1992 at the Disability Determi- 
nation Building, Room 1 , 322 Chapanoke Road, 
Raleigh, NC. 



Co 



R 



eason for Proposed Action: 



Rules .0401 - .0403 - Federal regulations require 
that the State define the types of supportive ser- 
vices to be made available to JOBS participants. 
These amendments are proposed to conform with 
rules previously adopted by the Social Services 
Commission. 

Rules .1201. .1206 and .1207 - Rules are being 
amended to implement training program imple- 
mentation policies and guidelines which were de- 
veloped by a 29-member committee comprised of 
providers, agencies, organizations. The ndes de- 
scribe various available resources and methods by 
which training requirements may be satisfied. 

Rules .2302, .3103 and .3104 - To implement rule 
changes initiated by the Domiciliary Home 
Licensure Program Rules Review Committee. 



' omment Procedures: Comments may be pre- 
sented in writing anytime before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of 
these rules by calling or writing to Donna Creech, 
Division of Social Services, 325 N. Salisbury St., 
Raleigh, NC 27603, 9191733-3055. 

CHAPTER 39 - EMPLOYMENT PROGRAMS 

SUBCHAPTER 39D - JOB OPPORTUNITIES 

AND BASIC SKILLS TRAINING (JOBS) 

PROGRAM 

SECTION .0400 - SUPPORTIVE SERVICES 

.0401 SUPPORTIVE SERVICES TO BE 
AVAILABLE IN JOBS COUNTIES 

Based on fund availability and service availabil- 
ity, the following services, as dcfmed in this Sec- 
tion, shall be available when necessary to support 
a JOBS participant's employment plan: 

(1) Health Support Services; 

(2) Chore In-Home Aide Services; 

(3) Transportation; 

(4) Personal and Family Counseling; 

(5) Individual and Farruly Adjustment; 

(6) Day Care Services for Adults; 

(7) Child Care Transportation; 

(8) Participation Expenses. 

Statutory Authority G.S. I43B-153; 42 U.S.C. 
602(g); 42 U.S.C. 682(a)(2). 

.0403 IN-IIOME AIDE SERVICES 

Chore In-Home Aide services are provided to 
JOBS participants and their family members 
when needed to support the participant's 
employability plan. Chore GenicL'o moono the 
provioion ©f eafe fe* poroonG »f aoGiGtanco t© 
poroonc i by performing homo management e* 
poroonal ewe tasks that afe e sG e nlial te- the activ 
ities (rrf daily living. Such taoko afe p e ifomied t© 
enable individuals t» remain » their own homoo 
when they afe unable tB- carry' »»t these actisitioo 
fof thomoolvoG aft4 whore w» roGponsiblo porno n 
is a' . ailable fof these tasks . Chor e G e n'ices Ghall 
be provided und e r profoGGional dirootion aft4 
only by perGunn wh© have r e ceiv e d training fof 
the proper p e rformance &f Guch taoliG. ProfoG 
sional direction means guidance afi4 Gupervision 
m implementing a plan ef eafe bac e d »» indisid 
Hal aGGOoomont ef a perGon'G health GtatuG aft4 
particular eafe needo. Home management tft- 
cludeo taoks related te- maintaining the home, 
shopping fof »f¥^ pr e paring m e als afi4 providing 
e ssential transportation fof the cli e nt. Personal 



6:21 NORTH CAROLINA REGISTER Februmy 3, 1992 



1607 



PROPOSED RULES 



eaf© includoc p taolio rclutL'd te phyoical eafe aft4 
fooding »f clionto. 5^ c . pocific tasks Aat fsay 
be> porformod aw defined according to lovol ef th« 
task, supc'P i' ision ri-'quirod i*ft4 training required. 
The primap." sen."ice definition of In-Home Aide 
Services as found m U) NCAC 35H .0312(1) is 
hereby adopted bv reference including subse- 
quent amendments and editions. Requirements 
governing the standards for the delivery' ot In- 
Home Aide -Services as found in J_l) NCAC 42H 
.0902 - .0914 arc hereb\' adopted bv reference in- 
cluding subsequent amendments and editions. 
Copies of the incorporated matenal mav be ob- 
tained from the Office of .Administrative 
Hearings, Post OlTice Drawer 27447, Raleigh, 
North Carolina 2761 1-7447 (919-733-2678) at the 
cost of tuc) dollars and tiftv cent ($2.50) for the 
first ten pages and fifteen cent (SO. 15) per addi- 
tional page. 



Statutorv Authoritv G.S. I43B-I53; 
602(g): 42 L.S.C'. 682(a)(2). 



42 L.S.C. 



CH.\P lER 42 - INDIMDL .\L .\ND FAMILY 
SUPPORT 

SL BCH APTER 42B - LICENSING OF HOMES 
FOR DEVEl OPMENTALL^ DISABLED ADLLTS 

SECTION .1200 - PERSONNEL 

.1201 PERSONNEL QLALIFICATIONS 

(a) TTie qualifications of administrator and co- 
administrator hired after Mav _K 1992 
supers icor in charge, manager, aft4 co manager 
are as foUows: 



(1) 



must be an adult age 21 or older; 



must ^ a hisfe school graduat < > e* certifi e d 
under A* G.E.D. Program (applies te 
those employed e«- »f after August h 



(4^ {2l must be in good physical, mental and 
emotional health (DSS 1S61): as deter- 
mined bv a physician: 

{4^ (3] must provide written documentation 
about convictions of criminal offenses 
from the clerk of court in the county in 
which the conviction was made, and 
about any driving offenses other than mi- 
nor traffic violations from the motor ve- 
hicles office; 

(^ (42 must b(* willing te improve abilities bv 
taking !. uitablo courses o fi e r e d » ^^ local 
community afi4 attending workshops fe- 
latod to Ar* management ©f homos aft4 
training »f doelopm e ntally disabled 
adults, ha^'e a Bachelor's degree in a hu- 
man ser\ ice field plus one v'car of related 



experience; or a Bachelor's degree in a re- 
lated field and complete a training pro- 
gram approved by the Department of 
Human Resources withm one year of 
employment; or a 2 year Associate Degree 
in a related field plus two years of related 



expenence and complete the approved 
training program within one year of em- 
ployment; or high school graduation or 
certification under the G.E.D. program 
plus three years of related experience and 
complete the approved training program 
within one \ear of employment; 

(5) must document ability to obtain credit or 
have other resources to meet operating 
costs and pro\ide required services when 
unexpected situations arise, such as ex- 
tended resident vacancies and major home 
repairs; 

(6) must be wilhn.g to work with bona fide 
inspectors and the monitoring and licens- 
ing agencies toward meeting and main- 
taining these Rules and other legal 
requirements, including those of the Civil 
Rights Act of \^ib4 when the administra- 
tor has signed the Statement of .Assurance 
of CompUance uith Title VI of the Civil 
Rights Act of 1964 ( I-orm DSS- 1464); 

(7) must provide three current reference 
sources mcluding one from the most re- 
cent emplo\er; 

(8) must earn 15 hours of continuing educa- 
tion credits annually in accordance with 
procedures established by the Department 
of Human Resources. 
The qualifications of the supervisor-in- 
hired after .Mav J_. 1992 are as follows: 
must meet the requirements referenced to 



charge 
ill 



tne req 



(21 
(Jl 

lii 



in Paragraph (a), Subparagraphs (2), (3), 
(7). and £8] of this Rule; 
must be age 1 8 or older; 



must document attainment of high school 
graduation or Cj.1 .D. certification; 



must document two years of pnor experi- 
ence in the care of persons with develop- 
mental disabilities or complete a training 
program approved bv the Department of 
1 luman Resources v\ithm one vear of 
employment. 



Suituton- Authoritv G.S. I3ID-2: I43B-I53; 
1 68- 1; 168-9. 

.1206 HEALTH REQCIREMENTS 

A medical examination certifying ^4^ person i* 
» good health (fomi DSS 1^6 1 »f other appro 
priat e stat e m e nt completed bv » physician) » Fe- 
quired fof t^ following individuals: 



160S 



6:21 NORTH CAROLIN.A REGISTER Febniarv i, 1992 



PROPOSED RULES 



(IT rTrCTTTCttrWr CBTtT PtH-'II rtt^T^^I^ 1 1 A. 1 1 1 T.^J I U T UT^ CXTT^T 

olooping i» the homo: 
(5) CO manager aft4 eaeb family mijmber lis'ing 
aft4 slooping i» tfee hom e . 

(a) The administrator and supervisor- in-charae 
must have a medical examination, including tests 
for tuberculosis documenting freedom from the 
disease in a communicable staoe, within 30 days 
prior to employment. 

(b) All staff and live-in non-residents must be 
tested for tuberculosis within 30 days prior to 
employment or living in the home, and annually 
thereafter. 

(c) All staff and hve-in non-residents must be 
screened for Hepatitis B infection according to 
g:uidelines published by the Department of Hu- 
man Resources. 

(d) Any staff member or Uve-in non-resident 
who behaves in a manner that jeopardizes the 
health and safety of others in the home may be 
required to undergo a medical or psychological 
examination. 

Statutory Authority G.S. I3ID-2; /43B-/53; 
I6S-I; 168-9. 

.1207 GENERAL PERSONNEL REQUIREMENTS 

RoquLromonto fof pornonnol are as follows: 

(4-)' A copy ef A^ phy^ i ioian's statement must 
be m Ae home afi4 available fef investi 
gation hf proper authoritioo at ali times 
¥i4iile Ae person is i» tbe employ »f tfee 
hom e . 

(4) 1» private fof profit homos Ae adminiotra 
tef aft4 CO administrator must apply fef 
their position(s) »» Ae form DSS 1860, aft4 
be approved eft Ae form DSS 1861. 

(4^ fe private non profit homes Ae board oi 
directors must apply »» Ae fonn DSS 1860 
aft4 be approved ovt form DSS 1861. 

(4-^ A personnel record shall be maintained fof 
each staff member including his jeb appli 
cation, references a«4 a» annual health fe- 
port. The group home shall ha¥e a manual 
ef personnel policies aft4 procedures. It^ 
manual shall contain information dealing 
with conditions ef employment, salary clas 
sifications, jeb descriptions, je^ perform 
ance. e valuation, aft4 promotional 
opportunities, fring e benefits, siek a«4 vaea- 
tfoft leave, off duty leu' . o, >vorlaiien's com 
pensation. a personnel grievance system. aft4 
severance proc e dures. Lach employee shall 
be given a copy €>f the manual when he be- 
^fts work ift the facility. 

{4^ The manager, co manager aft4 relief 
porson(G) ift charge must apply fo* their 
position(s) &» the foffft DSS 1863, aft4 dee- 




umontation that tfee quahfications have been 

«-»-« --•»♦ Ti-t T- ♦ l-» f^ f~ n r~L r~i r- 1 i t •'^ r-i c- r-r\ i » t- t 1^^ ■-* »-> T « 1 ^^ < rt ♦ Vi i-> 
nrW l\Jl. riTTJTJV TTTTTTrCTTTnTT TTmTTT TTf tTTT riTC 1_1I L 1 l\J 

hom e prior te- hiring the manager, ee- 
manag e r, aft4 rehof porson(s) m charge. 
f6) There shah be aft in oervioo training pfe- 
gram fof employooo ef the group home pro- 
vided by staffs &f the area mental health esii^ 
mental retardation program, regional mental 

r^TOTTTT LUIU H IV,' 1 1 1 UJ 1 L-LLLl UUllUil ^ 1 1 1 1. 1.' ^ OXTTTTT^TTT 

&f mental health aft4 mental retardation sei^ 
vices, division »f social services, university, 
community coUogo ond/or technical insti 
tute, &f other appropriat e ag e nci e s »f indi 
viduals. Each group homo shali participate 
i» pre service training. Pre oervioo training 
should include: 
(a) orientation te community organization, 
fb) regional mental retardation facilities, 
(e) practice ift a group homo. 
f?) The afea mental hoalth and mental retar 
dation program shall be responsible fof 
continuous in service education aft4 '• 
programs. 

I<}\ Ct^tf .-U.^..^A U r^ r nrni irn ri^H In r n-i rt 1 

pertinent te- the eafe ©fr and- programining 
fofr the mentally retarded. 

(a) Competent staff must be employed as 
needed, to perform housekeeping, supervision 
and personal care of the residents. 1 he number 
of staff wiU be determined by the home's hccnsc 
capacity and number of famil\' members living in 
the home who require care and supervision. 

(b) A detailed job description must be on file 
in the facility for each staff member, signed by 
the administrator and the employee. 

(c) All direct care staff must complete training 
annually m standard first aid and cardio- 
pulmonary resuscitation. 

(d) AU staff must demonstrate ability to apply 
all of the home s accident, fire safety and emer- 
gency procedures. 

(e) All staff must be informed of the confiden- 
tial nature of resident information and must pro- 
tect such information from unauthonzed 
disclosure in accordance with G.S. 13 ID- 21 ( 1) 
and (6]. 

(Jl /Vny staff member left 

dents must be ]_8 years of a^ or older. 

Statutorv Authoritv G.S. I3ID-2: I43B-I53; 
I6S-I; 168-9. 

SLBCH.APTER 42C - LICENSING OF FAMILY 
CARE HOMES 

SECTION .2300 - SERMCES 

.2302 HEALTH CARE 



alone with the resi- 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



1609 



PROPOSED RULES 



(a) The administrator is responsible for pro- 
viding occasional or incidental medical care, such 
as providing therapeutic diets, rotating positions 
of residents confined to bed, and applying heat 
pads. 

(b) 1 he resident or his responsible person is to 
be allowed to choose a physician to attend to 
him. 

(c) Immediate arrangements must be made by 
the administrator with the resident or his re- 
sponsible person for the resident to secure an- 
other physician when he cannot remain under the 
care of his own physician. The name, address 
and telephone number of the resident's physician 
is to be recorded on Form DSS-1865, the Resi- 
dent Register. 

(d) If a resident is hospitalized, a completed 
FL-2 or patient transfer form must be obtained 
before the resident can be readmitted to the fa- 
cihty. 

(e) Between annual medical examinations there 
may be a need for a physician's care. The Form 
DSS-1867 or an equivalent record is to be used 
by the physician to report any drugs prescribed 
and any treatment given or recommended for 
minor illnesses. 

(f) All contacts (ofTice, home or telephone) 
with the residents physician are to be recorded 
on Form DSS-1867 or an equivalent health ser- 
vices record which is to be retained in the resi- 
dent's record in the home. The physician's 
orders must be included in the health services 
record used for the resident, as follows: 

(1) When the resident is examined in the 
physician's office, the health services re- 
cord is to be taken and the physician is to 
add all necessary information; 

(2) When the physician examines the resident 
in the home, the physician is to add all 
necessary information into the health ser- 
vices record; and 

(3) Wlien a physician's order is given by tele- 
phone, the administrator or supervisor- 
in-charge must enter this into the health 
ser\'ices record, initial it and have the 
physician sign it within 30 days from the 
date the order is given. 

(g) ¥be t^e ef phvLiical rui i trainto i* k» l»e ai- 
low e d only e«- vvritton in ^' tructicm »f a liconf i od 
phyician. Tliio ordu'r mu ' . i t ■. p e cify tj^ rt ' ar . on fef 

\ I IT. II Li JL', t IIW I T V ^ tTT U3V IIIIVJ 1 1 1^ I HI IW 11 1 1 ITrT^SIS 

at- which A# rLT i truinto afe te- t»e loo ' - .e n e d e+ fe- 
mosL'd. 4^ ordur must br# e«- e* attached to 
Fonn Fl 2 ef Form MR 2 (upon tMiti ' ring tfe^ 
homo) ef Ae DSS 1867 &f iipprost'd t ' qui' i tilent 
ffef oubf i cquont ordoro). 

Noto: T4*i* H^e b4^ » physical rcitniint ruforo to i^ 
application ei a niijchanical do^ i ico to a pL » r ;. on to 



limit movomonts fof therap e utic »f protoctivo 
r e asons. Th e s e includ e anklets, wristlets, aft4 
restraining ohoots fe? non invahdo. Side rails aR4 
restraining shoots (when usod m chair) fof inval 
i4* ape net- consid e r e d rostrainto. The use of a 
physical restraint refers to the application of a 
mechanical device to a person to limit movement 
for therapeutic or protective reasons, excluding 
siderails for safety reasons. 

Residents shall be physically restrained only as 
provided for in the Declaration of Residents' 
Rights, G.S. 131D-21 (5), and in accordance with 
the followine: 



(1) The use of physical restraints is allowed 
only with a written order from a Ucensed 
physician. If the order is obtained from 
a physician other than the resident's at- 
tending physician, the attending physician 
shall be notified of the order within seven 
days. 

(2) In emergency situations the administrator 
or supervisor-in-charge shall make the 
determination relative to necessity for the 
tvpye and duration of the physical restraint 
to use until a physician is contacted. 
Contact shall be made within 24 hours. 

(3) The physician shall specify in the restraint 
order the medical need for the physical 
restraint, the type to be used, the penod 
of time it IS to be used, and the time in- 
tervals it is to be checked, loosened, or 
removed. Stall shall document the apph- 
cation, checking, loosening, or removing 
of the restraint in the resident's 
■Medication Administration Record or 
approved equivalent. 

(4) The current order for the physical restraint 
shall be on or attached to Form FL-2 or 
Form MR-2 (upon entering the home) 
or the Report of Health Services to Resi- 
dents Form, or approved equivalent (for 
subsequent orders). 

(5) I'he physician ordering the physical re- 
straint shall update the restraint order a[ 
a minimum of every six months. 

(6) If the resident's physician changes after 
admission to the home, the physician who 
is to attend the resident shall update and 
sign the existing restraint order. 

(7) Ihc administrator is responsible for en- 



(h) 



sunng that staff who apply physical re- 
straints are instructed in their use. 
Fhe administrator must have specific writ- 



ten instructions recorded as to what to do in case 
of sudden illness, accident, or death of a resident, 
(i) There must be an adequate supply of first 
aid supplies available in the home for immediate 
use. 



1610 



6:21 NORTH CAROLINA REGISTER Februarv 3, 1992 



PROPOSED RULES 



(j) The administrator must make arrangements 
with the resident, his responsible person, the 
county department of social services or other 
appropriate party for appropriate health care as 
needed to enable the resident to be in the best 
possible health condition. 

Statutory Authority G.S. I31D-2: I43B-I53. 

SECTION .3100 - RECORDS AND REPORTS 

.3103 ADMISSION OR DISCHARGE 

Forms are avaUablo free »f charge, upon fe- 
quoot, from ti*e county dopartmont ©f oooial sef^ 
viooo. fte adminiotrator uhaU notify Ae county 
departm e nt »f oocial ooniuus ef aa admiscion ef 
discharg e ©f a residont by tbe fiftfe day ©f the 
month following admission &f dischargo »» 
Form DSS 1869. When there is an admission 
or discharge of a resident, the administrator or 
supervisor-in-charge shall notify the county de- 
partment of social services by the fifth day of the 
month foUowing admission or discharge. No- 
tification shall be made by submitting the form 
for reporting admissions and discharges. The 
form does not need to be submitted if there have 
not been any admissions or discharges. 



Statutory Authority G.S. I3ID-2; I43B-I53. 

.3104 POPULATION REPORT 

The administrator or supervisor-in-charge must 
shall submit by :Wy 5+ January 31 of each year 
an annual population report (Form DSS 1868) 
for the previous fiscal calendar year to the county 
department of social services. If the home closes 
during the year, the administrator or supervisor- 
in-charge must compl e t e Form DSS 1868 shaU 
report for the fiscal previous calendar year to date 
of closing. aft4 submit it- t& the county depart 
mont ef social soP i 'icos. The required form is 
available free &f charg e , upon r e qu e st, from the 
county department »f social s e p i 'ioes. 

Statutory Authority G.S. J3/D-2; I43B-I53. 

TITLE 15.\ - DEPARTMENT OF 

ENVIRONMENT, HEALTH, .\ND 

NATURAL RESOURCES 



No 



otice is hereby given in accordance with G.S. 
1508-21 .2 that the Department of Environment, 
Health, and Natural Resource.';, Division of Envi- 
ronmental Management intends to adopt nde(s) 
cited as I5A NCAC 20 .0101 - .0103, .0201 - 
.0204. .0301 - .0310. .0401 - .0402, .0501 - .0504. 



1 he proposed effective date of this action is July 
1, 1992. 

1 he public hearing will be conducted on the fol- 
lowing dates and locations: 

February 19, 1992 

7:00 p.m. 

The Auditorium 

Catawba Valley Community College 

Hickory, N.C. 

February 24, 1992 

7:00 p.m. 

2nd Floor Courtroom 

Craven County Courthouse 

New Bern, N.C. 

February 27, 1992 

7:00 p.m. 

Ground Floor Conference Room 

Archdale Building 

Raleigh, N.C. 

IXeason for Proposed Action: To establish re- 
quirements that owners and operators of under- 
ground storage tanks provide assurance to the 
state that they will have the financial capabilities 
to cleanup releases from those tanks. These rules 
are mandated by G.S. 143-215.94H. 

y^omment Procedures: Interested persons may 
contact Mr. J. William Reid, at (919) 733-84S6 
for more information regarding these rules. 
Written comments will be received for 30 days 
after publication of the notice. Requests and 
comments must be submitted to Mr. J. William 
Reid, DEM - Groundwater Section, 441 N . 
Harrington St., Raleigh. NC 27603. Mailed 
written comments must be postmarked no later 
than March 4, 1992. 

l' iscal Note: These Rules affect the expenditures 
or revenues of local funds. A fiscal note was sub- 
mitted to the Fiscal Research Division on January 
13, 1992, OSBM on January 13, 1992, N.C. 
League of Municipalities on January 13, 1992. and 
N.C. Association of County Commissioners on 
January 13, 1992. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SLBCIIAPTER 20 - FINANCIAL 

RESPONSIBILITY REQLIREMEN IS FOR 

OWNERS AND OPERATORS OF 

LNDERGROLND STORAGE TANKS 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



1611 



PROPOSED RULES 



SECTION .0100 - GENERAL CONSIDERATIONS 

.0101 GENERAL 

(a) The purpose of this Subchapter is to es- 
tablish the requirements for financial responsi- 
bihtv for owners and operators of underijound 
storaize tanks located in North Carolina. 

(b) The Department of Hn\ironment. Health, 
and Natural Resources (Department) shall ad- 
minister the underground storaiic tank financial 
responsibifit\' compliance program for the State 
of North Carolina. 

(c) Department staff may conduct inspections 
as necessary to ensure compliance with this Sub- 
chapter. 

Statuion Authoritv G.S. 143-215.3 (a) (15); 
143-2I5.94H: I43B-282 (2 1 (h). 

.0102 COPIES OF REFERENCED FEDERAL 
REGLL.ATIONS 

(a) Copies of applicable Code of Federal Reg- 
ulations sections incorporated in this Subchapter 
are ayailable for inspection at Department of 
lm\ironment. Health, and Natural Resources re- 
gional offices. I hey are: 

( 1 ) Asheville Regional Office. Interchange 
Building. 59 Woodfm Place. Asheyille, 
North Carolina 2SS02: 



(2) Wmston-Salem Regional OtTice. Suite 100. 
8025 North Point Boulevard. Winston- 



Salem. North Carolina 2'lll6; 



[3] MooresNille Regional Otfice. 919 North 
Main Street. .Mooresville. North CaroUna 



15} 
(61 

iZi 



28115; 

Raleigh Regional Office. 3800 Barrett 
Dnve. Post Office Box 27687. Raleigh. 
North Carolina 27611; 



Fa\ette\ille Regional Office. \\^achoyia 
Building. Suite ^14^ FavetteviUe, North 
Carolina 28301; 

Washington Regional Office. 1424 
Carolina Avenue. I arish Building, 
Washington. North Carolina 2^889; 
Wilmington Regional Ofhce. 127 Cardinal 
Dn\e fxtension. Wilmington. North 
Carolina 28405. 



(b) Copies of such regulations can be made at 
these regional offices for ten cents ($0.10) per 
page. IndiMdu:iJ complete copies ma\' be ob- 
tained from the F.S. l-nvironmental Protection 
Agenc\ , Office of Fndergroiind Storage I anks. 



Post Office Box N)44. Rockville. Ma^^land 
20850 for no charge. 



Statuton- Authoritv G.S. 1 2-3.1 (c); 143-215.3 
(a) (15): 143B-282 (2) (h). 



.0103 SLBSTITLTED SECTIONS 

(a) References to sections of the Federal Reg- 
ulations incorporated by reference will refer to 
those sections an^ any subsequent amendments 



and editions. 

{bx References to 40 CFR 280.93 ^ to be 
taken as references to Rule .0204 of this Sub- 



chapter, with Paragraph correspondence being: 
40 CI R 280.93(a) corresponds to \S\ NCAC 
20 .0204fa) and (b|, 40 CFR 280.93(b) corre- 
sponds to J_5A NCAC 20 .0204(0 and (d); 40 
CFR 280.93(c) and (d) have no correspondence; 
and 40 CFR 280.93(e). (£[, (gj^ and [h[ corre- 
spond to 15A NCAC 20 .0204(0, (g), (h). and 
(i). respectively. 

(£2 References to 40 CFR 280.95 are to be 
taken as references to Rule .0302 of this Sub- 
chapter, with Paragraph correspondence being: 
40 Cl'R 280.95(a). (e), (f), and (g| correspond to 
1 5A NCAC 20 .03Q2(a). (c), (d). and (e). re- 
spectively: 40 CI R 280.95(b) and (c) correspond 
to \SA. NCAC 20 .0302(b); 40 CFR 2811.95(d) 
corresponds to 15A NCAC 20 .0302(f) and (,g). 



Statutory Authority 
143-2I5.94T; I50B-2I.6. 



G.S. I43-2I5.94H: 



SECTION .0200 - PROGRAM SCOPE 

.0201 APPLICABILITY 

(a) The provisions for "AppUcabilitv" con- 
tained in 40 CFR 280.90 are hereb\ incorporated 
b\ reference includmg an\ subsequent ^miend- 
mcnts and editions, except that these pro\isions 
will apply to all underground storage tanks as 
defmed herein. Locations where tliis material is 
a\ailable are specified in Rule .0102 of this Sub- 
chapter. 

(b) A dual usage tank will be classffied as a 
commercial tank if the commercial use is an in- 
tegral part of Its history . 

Statutory Authority G.S. /43-2I5.94A; 
143-2I5.94H: I43-2I5.94T: 1508-21. 6. 

.0202 COMPLIANCE D.VTES 

1 he pro\isions for "Compliance Dates" con- 
tained in 40 CIR 280.91 are hereby incorporated 
by reference including any subsequent amend- 
ments and editions, except that "owners" is re- 
placed bv "owners and operators" and "owning" 
IS replaced bv "o\sning and or operating" 
throughout this Section. locations where this 
material is a\ailable are specified in Rule .0102 
of this Subchapter. 

Statuton,- Authority G.S. I43-2I5.94A: 
143-215.94H: I50B-2L6. 



1612 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



PROPOSED RULES 



.0203 DEFINITIONS 

(a) The definitions contained in 15A N'CAC 
2N .0203 and 40 CFR 280.92 are hereby incor- 
porated by reference including any subsequent 
amendments and editions, except for "Occur- 
rence" and "Underground Storage Tank". Lo- 
cations where this material is available are 
specified in Rule .0102 of this Subchapter. 

(b) The following definitions are dcfmed for the 
purposes of this Subchapter: 

( 1) ".Annual 1 ank Operating Fee" is a fee paid 
by the owner or operator of each com- 
mercial underground storage tank to the 
Department for deposit into the Com- 
mercial Fund. This fee is assessed on an 
annual basis for all underground storage 
tanks in use on Januar.* ]_ of each \ear 
beginning with 1989 and on a pro-rated 
monthly basis dunng the first year of use 
for tanks first brought mto use after Jan- 
uary 1, 19S9. If a tank is taken out of use, 
the appropriate fees are due for the period 
pnor to its remo\'al from use. 

"Dual L'sage Tank" means an under- 
ground storage tank which has had varied 
usage which would cause the tank to be 
considered a commercial underground 
storage tank dunng certain times and a 
noncommercial underground storage tank 
during other times and for which both the 
commercial and the noncommercial us- 
ages were integral to the operation or ex- 
istence of the tank. 

"Director of the Implementing Agency" 
means the Director of the Division of 
Fn\'ironinental .Management. 

(4) "Occurrence" means one or more releases 
which result(s) in a single plume of soil, 
groundwater, and or surface water con- 



must demonstrate fmancial responsibilitv for at 
least one million dollars ($1,000,000) per occur- 
rence for taking corrective action and for com- 



(H 



(31 



tammation (consisting of free product 
and or associated dissolved contaminants 
exceeding standards established under 15A 
NCAC 2L .0202 or any other applicable 
laws, rules, or regulations) emanating 
from a gi\en site. 
(5) "Underground Storage Tank" is taken for 
the purposes of this Subchapter to mean 
any Commercial L nderground Storage 
Tank as defined in G.S. 143-21 5.94A. 



Statuton Authority G.S. 
143-21 5.94H: I50B-21.6. 



/43-2/5.94A; 



.0204 .\MOL NT .\ND SCOPE OF REQUIRED 
FIN.\NCI.\L RESPONSIBILITY 

(a) Owners or operators of petroleum under- 
ground storage tanks located in North CaroUna 



pensating third parties for bodily injury and 
property damage caused by accidental releases 
an sing from the operation of petroleum under- 
ground storage tanks. 

(b) Comphance with all laws, rules, and regu- 
lations relating to the Commercial Leaking Pe- 
troleum Underground Storage Tank Cleanup 
Fund shall constitute demonstration of financial 
responsibility for that amount specified in Para- 
graph (a) of this Rule which is in excess of the 
sum of the amounts required to be paid per oc- 
currence by the owner or operator for cleanup 
and for third-party claims. 

(c) Owners or operators of petroleum under- 
ground storage tanks located in North Carolina 
must demonstrate financial responsibility for 
taking corrective action and for compensating 
third parties for bodily injury and property dam- 
age caused bv accidental releases arising from the 
operation of petroleum underground storage 
tanks in at least the following annual aggregate 
amounts: 

( 1) For owners or operators of one to 100 
petroleum underground storage tanks, one 
million dollars ($1.000.000): and 

(2) For owners or operators of 101 or more 
petroleum underground storage tanks, 
two miUion doUars ($2.000.000). 

(d) If all laws, rules, and regulations relating to 
the Commercial Leaking Petroleum Under- 
ground Storage Tank Cleanup Fund arc com- 
plied with, the owner or operator must pro\ide 
an annual aggregate fmancial assurance of at least 
the sum of the amounts specified in Subpara- 
.graphs (dXI), (2), and (3] of this Rule as foUows: 

( 1 ) 4 he a\'crage maximum amount required 
to be paid bv an owner or operator per 
occurrence for cleanup as determined in 
accordance with Paragraph (c) of this 
Rule: 

(2) The average maximum amount required 
to he paid by an owner or operator per 
occurrence for third party claims as deter- 
mmed in accordance with Paragraph (e) 
of this Rule: and 

(3) Three percent of the multiple of 

(A) the amount in SuhparaLjaph (d)( 1) of 
this Rule: and 

(B) the number of tanks being coverecf 

(e) An owner or operator pro\idini: financial 
assurance for more than one underground storage 
tank where the vanous tanks do not all require 
the same maximum amounts to be paid per oc- 
currence for cleanup and or third party claims 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



1613 



PROPOSED RULES 



shall calculate an a\'craL;e maximum amount to 

he paid per tx'currence as lollows: 

( 1 ) Dctcimme the maximum amount to be 
paid per occurrence for each underground 
storaiie tank heiniz assured; 
Sum the \alues detennined in Subpara- 
tiraph (e)( 1 ) of this Rule and divide by the 
number of undereround storage tanks be- 
ing assured. 



Q 



(f) Owners or operators shall annually review 
the amount of aggregate assurance provided. 
The amounts of required financial responsibility 
and annual aggreiiate assurance shall be adjusted 
to that required in Paragraphs (a), (b>. ( c ) . and 
(d| ot this Rule. All changes in status, including 
installations and closures, shall he rep<irtcd to the 
Department, and all fees due shall be paid m ac- 
cordance u ith applicable laws, rules, and reg;u- 
lalions- 

( g ) If an ovsner or operator uses separate 
mechanisms or separate combinations of mech- 
anisms to demonstrate financial rcsponsibihtv tor 
dilferent petroleum underground storage tanks, 
the annual aggregate required shall he based on 
the number of tanks co\cred hv each such sepa- 
rate mechanism or combination of mechanisms. 

(h) The amounts ot assurance required under 
this Rule exclude legal defense costs. 



(]) The required pcr-occurrence and annual 
agfflegate coverage amounts do not in any way 
limit the liability of the owner or operator. 

(i) Assurance for petroleum underground stor- 
age tanks located in North Carolma must be 
provided separately from that provided for pe- 
troleum underground storage tanks not located 



bC:. in North Carolina. 



Slalutoty Authority 
143-215.947. 



G.S. I43-2I5.94H; 



SECTION .0.300 - ASSURANCE MECHANISMS 

.0301 AI! OWABLE MECHANISMS AND 

COMBINAIIONS OF MECHANISMS 

Ilie provisions for "Allowable Mechanisms and 
Combinations of Mechanisms" contained in 40 
C h R 28().'M are hereby incorporated bv reference 
including any subsequent amendments and edi- 
tions. Locations where this material is available 
arc specified in Rule .0102 of this Subchapter. 
"Cju;iran1ee" and "Surety Bond" are acceptable 
mechanisms in the State of North Carolina. 



Statutory 
/50B-2/.6. 



Authority G.S. J43-2/5.94H; 



.0302 SELF INSLRANCE 

(a) Assurance of financial responsibility ma\- he provided bv an owner or operator as a self-insurer 
if the owner or tiperator has complied with all of the laws, rules, and regulations relative to the Com- 
mercial I caking Petroleum Lnderground Storage Tank Cleanup Lund :md the owner or operator 
qualities to he a self-msurer hv passing the financial test in Paragraph ih) of this Rule or establishes a 
"liTist Lund as set out in L.txagraph (h) of this Rule. 

(b) To qualify as an insurer, an owner, operator, and or guarantor must meet the following criteria 
based on \ear-end financial statements for the latest completed hscal year. 

( 1 1 The owner or operator, and or guarantor, must have a tangible net worth of at least: 
(A) Ihe sum of the amounts specitied in Subparagraphs (hl( 1 )(A)(i) and (ii) of this Rule as fol- 
lows, not to exceed three million dollars (S.VOOO.OOQ) and not to be less than one hundred tiftv 
thousand dollars ($150.000): 
(i) the multiple of: 

(I) the number of tanks being co\"ered bv this mechanism, 

(II) the cleanup costs required to he paid by the owner or operator per occurrence in ac- 
cordance with G.S. 143-21 5.')4B(h). 

(III) the proportion of the required financial assurance required pursuant to Rule .0204 of 
this Subchapter being co\ered bv this mechanism, and 

(IV) a constant representing an average value per tank calculated from 0.05 for each under- 
ground storage tank co\"ered bv this mechanism which is m coinpliance with any pertbrm- 
ance standards required on December 22, L)QS. and 0. 18 for each underground storage tank 
co\ered h\ this mechanism which is not in compliance v\ith an\ peric^nnance standards 
required on December 22. LWS. 

(ii) two percent ot' the multiple of: 

(I) the number of tanks being co\'ered bv this mechanism. 



(II) the amount for third party claims required to he paid bv the owner or operator per oc- 
currence m accordance with G.S. l4.V215.')4B(b). and 

(Illl the proportion of the required financial assurance required pursuant to Rule .0204 ot 
the Subchapter being co\cred bv this mechanism: 



I6I4 



6:21 AORTH CAROLINA REGISTER Eebruary ^, 1992 



PROPOSED RULES 



(B) Any amount of tangible net worth used to assure financial responsibility for petroleum 
underground storage tanks not located in North Carolina; 

(C) Ten times the sum of the corrective action cost estimates, the current closure and post-closure 
care cost estimates, and amount of liabihty coverage for Hazardous Waste Management Facili- 
ties and Hazardous Waste Storage Facihties for which a financial test is used to demonstrate fi^ 
nancial responsibility to FPA under 40 CFR Parts 264.101, 264.143, 264.145, 265.143, 265.145, 
264.147, and 265.147 or to a state implementing agency under a state program authorized by 
FPA under 40 CFR Part 271: and 

(D) Ten times the sum of current plugging and abandonment cost estimates for injection wells 
for which a financial test is used to demonstrate financial responsibility to F^PA under 40 CFR 
Part 144.63 or to a state implementing agency under a state program authonzed by FPA under 
40 CFR Fart 145. " 

(2) A Guarantor must have a net worth at least two hundred thousand dollars ($200,000) greater 
than that required by Subparagraph (b)( 1 ) of this Rule. 

(3) The owner or operator, and or guarantor, must have a letter signed by the chief financial officer, 
worded as specified in Paragraph (g) of this Rule, and must do one of the following: 

(A) Obtain annually a compilation report issued by an independent certified pubhc accountant 

or certified public accounting firm; 
(D) File fmancial statements annually with the U.S. Securities and Exchange Commission, the 

Energy Information Administration, or the Rural Electrification Administration; or 
(C) Report annually the firm s tangible net worth to Dun and Bradstreet. and Dun and Bradstreet 

must have assigned the firm a financial strength rating of 4A or 5A. 

(4) The firm's year-end financial statements must be independently compiled and cannot include 
an adverse accountant's report or a "going concern" qualification. 

(c) If an owner or operator is acting as a self-insurer in accordance with Paragraph (b) of this Rule 
and fmds that he or she no longer meets the requirements of the test in Paragraph (b) of this Rule based 
on the year-end fmancial statements, the owner or operator must obtain alternative coverage within 150 
days of the end of the year for which financial statements have been prepared. 

(d) The Department may require reports of financial condition at any time from a guarantor and from 
an owner or operator who is self insuring. If the Department fmds, on the basis of such reports or other 
information, that the owner, operator, or guarantor no longer meets the fmancial test requirements of 
Paragraph (b) of this Rule, the owner or operator must obtain alternate coverage within 30 davs after 
notification of such a finding. 

(e) \i_ the owner or operator fails to obtain alternate assurance within 150 days of finding that he or 
she no longer meets the requirements of the fmancial test based on the vear-end financial statements, 
or within 30 days of notification by the Department that he or she no longer meets the requirements 
of the fmancial test, the owner or operator must notify the Department of such failure within 10 days. 

(f) To demonstrate that it meets the financial test under Paragraph (b) of this Rule, the chief financial 
olTicer of the owner or operator and 'or guarantor must sign, within 120 days of the close of each fi^ 
nancial reporting year, as defmed by the 12-month penod for which financial statements used to sup- 
port the fmancial test are prepared, a letter worded exactly as in Paragraph (g) of this Rule, except that 
the instructions in brackets are to be replaced by the relevant information and the brackets deleted. 

(£} FFT1 FR FROM CHIEF FINANCIAF OFFICER 

F [insert: name of chief financial officer|. the chief financial officer of (insert: name and address of 
the owner or operator, or guarantor) have prepared this letter in support of the use of [insert: "the fi^ 
nancial test of self-insurance. ' and or "guarantee"! to demonstrate financial responsibifity for [insert: 
"takmg corrective action" and or "compensating third parties for bodily injury' and property damage '[ 
caused by [insert: "sudden accidental releases" and/or "nonsudden accidental releases"! in the amount 
of at least [insert: dollar amount| per occurrence and [insert: dollar amount[ annual aggregate arising 
from operating (an) underground storage tarLk(s). 

I nderground storage tanks a1 the following facilities are assured by this fmancial test by this [insert: 
"o\sner or operator," and or "guarantor '[: 

[Fist or attach the following information for each facility: the name and address of the faciUtv where 
tanks assured by this financial test are located, facility number(s) assigned bv the Department, and 
date(s) of last payment of annual tank operating fce(s). If separate mechamsms or combinations of 
mechanisms, other than the Commercial leaking Petroleum l.'ndcrground Storage Tank Cleanup 
Fund are being used to assure any of the tanks at this facility, list each tank assured by this financial 
test.[ 



6:21 NORTH CAROLINA REGISTER February 3, 1992 1615 



PROPOSED RULES 



|\Vhen appropriate, include the follovsing for Hazardous Waste Management Facilities. Hazardous 
Waste Storage Facilities, and Injection Wells: 

A (insert: "financial test," and or "guarantee") is also used by this (insert: "owner or operator," or 
"guarantor") to demonstrate evidence ot financial responsibility in the following amounts under EPA 
regulations or state programs authorized by FPA under 40 CFR Parts 271 and 145: 

FPA Regulations Amount 



Closure (includmg ^264.143 and §265.143) 

Post-Closure Care (including §264.145 and §265.145) . 
1 lability Co\'eragc (including §264.147 and §265.147) . 

Corrective .Action (including §264. l(Jl(b)) 

Plug.ging and /Xbandonment (including §144.63) 

lotal 



This [insert: "owner or operator." or "guarantor"! has not received an adverse report or a "going 
concern" qualification from an independent accountant on hjs financial statements for the latest com- 
pleted fiscal year. 

_L a^ Number of USTs being covered 

K Average maximum amount of cleanup costs 

(Rule .l)204(d)(l)) 

c^ Average maximum amount of third-partv costs 

(Rule .()2()4(J)(2)) 

d^ proportion covered 

e. constant (Rule .n3n2(b)( l)(A)(i)) 

f, Cleanup fotal U X b X d X e} $ 

. g, Third-t^artv fotal (0.(J2 X a X c X d) $ 

k If (juarantor, Hst S2l]().0ilQ .". $ 

Z Tangible assets appUed to L.STs not in North Carolina $ 

Ten times the costs for Hazardous Waste Facilities and Injection WeUs $ 

Sum of lines If. Ig. Ih. and 2 $ 



Total tangible assets. 



Total liabilities [if any of the amount reported on line 4 is included in total 
Liabilities, vou ma\ deduct that amount from this line and add that 



amount to line 7| 

7^ Tangible net worth [subtract line 6 from line 5] . 



'\'es No 



8^ Is line 7 at least [for an owner or operator: $150,000; for a guarantor: 

$350.0001? 

9^ Is hne 7 equal to or greater than line 4? 

10. Has a compilation report been issued bv an certified public accountant 
or certified public accounting firm? 

1 1. Ha\e financial statements for the latest fiscal year been fded with the 
Securities and Exchange Commission? 



12. Ha\e financial statements for the latest fiscal year been filed with the 
Fncrg\ Infonnation .Administration'? 



!3. Have financial statements for the latest fiscal year been filed with 
the Rural Electrification .Administration"? 



14. Has financial information been provided to Dun and Bradstreet. and has 
Dun and Bradstreet provided a financial strength rating of 4A or 5. A'? 
[Answer "Yes" only if both critcna have been met[ 



I hereby certify that the wording of this letter is identical to the wording specified in 15A NCAC 20 
.0302. as such regulations \vere constituted on thie date shown immediately below, and that the infor- 
mation contained herein is complete and accurate. 

[Signature iA_ chief financial officer] 
I Name 1 



[Title[ 
[Date[ 



1616 6:21 NORTH CAROLINA REGISTER Eebruary 3, 1992 



PROPOSED RULES 



(h) The provisions for "Trust Fund" contained in 40 CFR 280.102 are hereby incorporated by ref- 
erence including any subsequent amendments and editions. Locations where this matenal is available 
are specified in Rule .0102 of this Subchapter. 

Statutory Authority G.S. 58-2-205; 143-2I5.94H: I50B-2I.6. 



.0303 GLARANTEE 

The provisions for "Guarantee" contained in 40 
CFR 280.96 are hereby incorporated by reference 
including any subsequent amendments and edi- 
tions. Locations where this material is available 
are specified in Rule .0102 of this Subchapter. 



Statutory 
I50B-21.6. 



Authority G.S. 143-215.94H; 



.0304 INSLR.\NCE .\ND RISK RETENTION 
GROUP COVERAGE 

The pro\isions for "Insurance and Risk Re- 
tention Group Coverage" contamed in 40 CFR 
280.97 are hereby incorporated by reference in- 
cluding any subsequent amendments and edi- 
tions, except that "licensed to transact the 
busmess of insurance or eligible to pro\ide in- 
surance as an e.\cess or surplus lines insurer in 
one or more states" m §^2S0.97(b)( 1 ). (b)(2). and 
(c) is replaced bv "licensed, registered, or other- 
wise authorized to provide insurance in North 
Carolina". Locations where this material is 
available are specified in Rule .0102 of this Sub- 
chapter. 

Statutory Authority G.S. 58-2-125; 58-22; 
143-2I5.94H; I50B-2I.6. 

.0305 SURETY BOND 

The provisions for "Surety Bond" contained in 
40 CFR 280.98 are hereby incorporated by ref- 
erence including any subsequent amendments 
and editions. Locations where this material is 
available are specified in Rule .0102 of this Sub- 
chapter. 



Statutorj- 
I50B-2I.6. 



Authority G.S. 143-215.94H; 



.0306 LETTER OF CREDIT 

The provisions for "Letter of Credit" contained 
in 40 CFR 280.99 are hereby incorporated by 
reference including any subsequent amendments 
and editions. Locations where this matenal is 
available are specified in Rule .0102 of this Sub- 
chapter. 

Statutory 
1 50 B- 21. 6. 



Authority G.S. I43-215.94H; 



.0307 STANDBY TRUST FUND 

The provisions for "Standby Trust Fund" con- 
tained m 40 CFR 280.103 are hereby incorpo- 
rated by reference mcluding any subsequent 
amendments and editions. Locations where this 
matenal is available are specified in Rule .0102 
of this Subchapter. 



Statutory 
I50B-2I.6. 



Authority G.S. I43-2I5.94H; 



.0308 INSURANCE POOLS 

(a) Insurance Pools established by owners and 
operators may be used alone or in combination 
to demonstrate tmancial assurance in accordance 
with Rules .0204 and .0301 of this Subchapter. 

(b) Insurance Pools must comply with the re- 
quirements of G.S. 143-215.941 and any other 
requirements imposed by the Commissioner of 
Insurance of the State of North Carolina and any 
relevant law. rule, or regulation. 



(c) Fach owner and operator provided fmancial 
assurance through an Insurance Pool must 
maintain a certificate of insurance issued by the 
Insurance Pool listing, at least: 



( 1 ) the name and address of the member: 

(2) the location of the facilities owned by that 
member where underground storage tanks 
are being insured by the pool; 
the number of insured underground stor- 



01 



age tanks at each facility; 



the capacity of each insured underground 
storage tank: 



(5) the amount of insurance pro\ided for each 
underground storage tank; and 

(6) the name, address, and signature of the 
Administrator of the Insurance Pool. 



Statutoiy A uthority 
143-2/ 5. 94 1. 



G.S. 143-2I5.94H; 



.0309 SUBSTITUTION OF FIN.ANCIAU 
ASSUR.\NCE MECH.\NISMS 

The pro\isions for "Substitution of Financial 
Assurance Mechanisms by Owners or 
Operators" contained in 40 CFR 280.104 are 
hereby mcorporated by reference including anv 
subsequent amendments and editions. Locations 
where this material is a\ailable are specified in 
Rule .0102 of this Subchapter. 



6:21 NORTH CAROLINA REGISTER Eebruary 3, 1992 



1617 



PROPOSED RULES 



Statutory 
150B-2I.6. 



Authority G.S. I43-2I5.94H: 



.0310 CANCELLATION OR NONRENEWAL 
BY A PROMDER OF ASSURANCE 

The provisions for "Cancellation or Non- 



ASSLRANCE MECHANISMS 

The pro\isions for "Drawing on Financial As- 
surance Mechanisms" contained m 40 CFR 
280.108 are hereby incorporated by reference in- 
cluding any subsequent amendments and edi- 
tions. Locations where this material is available 



renewal bv a Provider of Financial Assurance" are specified m Rule .0102 of this Subchapter. 



contained in 40 CFR 280.105 are hereby incor 



porated by reference including any subsequent 
amendments and editions. I ocations where this 
material is a\aiiable are specified in Rule .0102 
of this Subchapter. 



Statutory 
150B-21.6. 



Authority G.S. J43-2I5.94H; 



SECTION .0400 - RESPONSIBILITIES OF 
0\\N.ERS AND OPERATORS 

.0401 REPORTING BY 0\\N.ER OR 
OPERATOR 

The provisions for "Reporting by Owner or 
Operator" contamed m 40 CFR 280.106 are 
hereby incorporated by reference including anv 
subsequent amendments and editions. Locations 
where this matenal is available are specified m 
Rule .0102 of this Subchapter. 



Statutory 
150B-2I.6. 



Authoriti- 



es. 



143-21 5. 94 H: 



.0402 RECORD KEEPING 

(a) The pro\isions for '' Record Keeping" con- 
tained in 40 CFR 280.107 are hereby incorpo- 
rated by reference including anv subsequent 
amendments and editions. Locations where this 
matenal is a\ailable are specified in Rule .0102 
of this Subchapter. 

(b) In addition to the requirements incorpo- 
rated in Paragraph (a) of this Rule, the following 
are required as evidence of financial responsibil- 
ity: 

(1) An owner or operator using an "Insurance 
Pool" must maintain a copy of the signed 
insurance certiticate as specit'ied in Rule 
.0308(c) of t_his Subchapter. 

(2) Fach ouner or operator must maintain 
copies of cancelled checks for payment of 
annual tank operating fees for the preced- 
ing three \ears or anv alternate e\idence 
ot pa\ment of the annual tank operating 
fees supplied bv the Department. 



Statutory 
I50B-21.6. 



.0502 



Authority G.S. I43-215.94H; 



RELE,\SE FROM THE 
REQLIREMENTS 

The provisions for "Release From the Require- 
ments" contained in 40 CFR 280.109 are hereby 
incorporated bv reference including any subse- 
quent amendments and editions. Locations 
where this material is a\'ailabie are specified in 
Rule .0102 of this Subchapter. 



Statutory 
150B-2I.6. 



Authority G.S. 1 43- 2 1 5. 94 H; 



.0503 INCAPACITY OF 0\\"\ER OR 
OPER.^TOR OR PROVIDER OF 
ASSURANCE 

(a) The provisions for "Bankruptcy or Other 
Incapacity of Owner or Operator or Provider of 
Fmancial Assurance" contained in 40 CFR 
280.110. except for Subsection 280.110(d). are 
hereby incorporated bv reference including any 
subsequent amendments and editions. Locations 
where this matenal is available are specified in 
Rule .0102 of this Subchapter. 

(b) Within 60 days after receipt of notification 
that the Commercial Leaking Petroleum Under- 
ground Storage lank Cleanup Fund has become 
incapable of paving for assured corrective action 
or third-partv compensation costs, the owner or 
operator must obtain financial assurance for the 
full amounts specified in Rule .0204. Paragraphs 
(a) and (c). of this Subchapter. 

(c) Within 60 davs after receipt of notification 
that the Noncommercial Leaking Petroleum 
L nderground Storage lank Cleanup Fund has 
become incapable of paving for additional 
cleanup actions to be undertaken bv the Depart- 
ment, any owner or operator or guarantor who 
self insures or guarantees based on Rule .0302. 
Paragraph (b). of thjs Subchapter must obtain 
financial assurance for a[ least twice the amount 
specified in Rule .0204. Paragraph (d). of this 
Subchapter assured in accordance with Rule 



Statutory 
150B-2i.6. 



.Authority 



G.S. I43-2I5.94H: .0302, Paragraph (b). of this Subchapter. 



SECTION .0500 - CHANGES IN ST.ULS 
.0501 DRAWING ON FIN.VNCIAL 



Statutory .-iuthoritv G.S. 
I43-2I5.94T: /50B-2I.6. 

.0504 REPLENISHMENT 



I43-215.94H: 



ISIS 



6:21 NORTH CAROLINA REGISTER February i, 1992 



PROPOSED RULES 



(a) The provisions for "Replenishment of 
Guarantees, Letters of Credit, or Surety Bonds" 
contained in 40 CFR 280.1 1 1 are hereby incor- 
porated by reference including any subsequent 
amendments and editions. Locations where this 
material is available are specified in Rule .0102 
of this Subchapter. 

(b) If at any time after a standby trust is funded 
upon the instruction of the Department with 
funds drawn from a guarantee, letter of credit, or 
surety bond, and the amount in the standby trust 
is reduced to less than the amount for which the 
owner or operator is responsible per occurrence 
for third party claims, the owner or operator shall 
within 60 days from which the funds were drawn: 

( 1) Replenish the value of financial assurance 
to equal the fuU amount of coverage re- 
quired, or 

Acquire another financial assurance 
mechanism for the fuU amount of cover- 
age provided by the Standby Trust. 



iH 



Statutory Authority 
I43-2I5.94T; I50B-2I.6. 



G.S. 



I43-2I5.94H; 



•k-kie-k-k-k-k^iiie-k'k-k'k-k-k-k-k 



i\ otice is hereby given in accordance with G.S. 
I50B-2I.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend r-ule(s) 
cited as ISA NCAC IOC .0402. 

1 he proposed effective date of this action is May 
I, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on February IS, 1992 in Room 3S6, Archdale 
Building. 512 N. Salisbury St., Raleigh, AC 

27604-1188. 

IXeason for Proposed Action: The mesh size is 
no longer necessary because manufactured cast 
nets have mesh sizes which are larger than the 
current restriction. 

K^ omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. In addition, the record of hearing will 
be open for receipt of written comments from 
February 3. 1992 to March 4. 1992. Such written 



comments must be delivered or mailed to the N.C. 
Wildlife Resources Commission, 512 N. Salisbury 
St., Raleigh, NC 27604-1188. 

CH.\PTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER IOC - INUAND FISHING 
REGULATIONS 

SECTION .0400 - NONGAME FISH 

.0402 TAKING BAIT FISHES AND 
FISH BAIT 

(a) It is unlawful to take bait fishes in the in- 
land waters of North Carolina using equipment 
other than: 

(1) a net of dip net design not greater than six 
feet across; 

(2) a seine of not greater than 12 feet in length 
and with a bar mesh measure of not more 
than one-fourth inch; 

(3) a cast net; with a oquaro mooh ef a€4 mor e 
than throo oightho inch; 

(4) mirmow traps not exceeding 12 inches in 
diameter and 24 inches in length, with 
funnel openings not exceeding one inch in 
diameter, and which are under the imme- 
diate control and attendance of the indi- 
vidual operating them. 

(b) Game fishes and their young taken while 
netting for bait shall be immediately returned 
unharmed to the water. No person shall take 
more than 200 bait fish from inland fishing wa- 
ters during one day. It is unlawful to take bait 
fishes or fish bait from designated public moun- 
tain trout waters and: 

(1) Chatham County: 
Deep River 
Rocky River 
Bear Creek 

(2) Lee County: 
Deep River 

(3) Moore County: 
Deep River 

(4) Randolph County: 

Deep River below the Coleridge Dam 
Fork Creek. 

Statutory Authority G.S. 113-134; 113-135; 
113-272; 113-272.3: 113-292. 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



1619 



FINAL RULES 



/l dopted rules filed by the Department of Rex'enue are published in this section. This department 
is not subject to the provisions ofG.S. I SOB, Article 2 requiring publication in the N.C. Register of 
proposed rules. 

JLjffective October I, 1991, the Departments of Correction and Revenue are subject to G.S. 150B, 
Article 2A. 



U, 



pon request j'rom the adopting agency, the text of rules will be published in this section. 



TITLE 17 
DEPARTMENT OF RE\ ENUE 

CHAP I ER 9 
MOTOR FUELS TAX DFVTSION 

STBCHAPTFR 9G - MOTOR FLELS TAX DFV ISION 

SECTION .0100 - APPLICATION FOR AND CANCELLATION OF LICENSE AS A 

DISTRIBUTOR 

.0105 TYPES OF ACCEPTABLE BONDS 

The Motor Fuels Tax Division will accept surety bonds on Form Gas. 1212, furnished by this Divi- 
sion, executed by any surety company licensed to do business in this State. The Division will also 
accept bonds secured by the following types of collateral: 

(1) Certificates of deposit or cashier's checks, made payable to the taxpayer; 

(2) Negotiable L'.S. Treasury bonds; 

(3) Negotiable U.S. Treasury notes; 

(4) Public School Facilities bonds; 

(5) Housing Finance Agency bonds; 

(6) General Obligation Bonds of the State of North Carolina or its political subdivisions; and 

(7) Revenue Bonds of the State of North Carolina or its political subdivisions with a rating of at least 
BAA or BBB. 

Notes and bonds tendered as collateral must have a fair market value at least equal to 115 percent of 
the collateral required. 

Histofy Sote: Statutory Authority G.S. 105-262; 105-441; 105-442; 
Eff January 1, 19S3; 
Amended Eff January 1, 1992; October I. 1991; March I, 1987. 

.0107 IRREVOCABLE LETrER OF CREDIT 

The Motor Fuels Tax Di\'ision will accept an irre\'ocable letter of credit executed on the Department's 
Form Gas. 1213. 

History Sote; Statutory- Authority G.S. 105-262; 105-433; 
Eff January 1, 1992. 

SUBCHAPTER 9H - SPECIAL FUELS TAX 

SECTION .0100 - SPECIAL FUELS LICENSES 

.0103 TYPES OF ACCEPTABLE BONDS 

The Motor Fuels Tax Di\ision will accept surety bonds on Form Gas. 1212, furnished by the Divi- 
sion, executed by any surety company licensed to do business in this State. The Division will also 
accept bonds secured by the following types of collateral: 



1620 6:21 NORTH CAROLINA REGISTER February }, 1992 



FINAL RULES 



(1) Certificates of deposit or cashier's checks, made payable to the taxpayer; 

(2) Negotiable U.S. Treasury bonds; 

(3) Negotiable U.S. Treasury notes; 

(4) Public School Facilities bonds; 

(5) Housing Finance Agency bonds; 

(6) General Obligation Bonds of the State of North Carolina or its political subdivisions; and 

(7) Revenue Bonds of the State of North Carolina or its political subdivisions with a rating of at least 
B.AA or BBB. 

Notes and bonds tendered as collateral must have a fair market value at least equal to 1 15 percent of 
the collateral required. 

History Note: Statutory Authority G.S. 105-449.5; 105-44932; 
Eff. January I. I9S3; 
Amended Eff. January I, 1992; October I, 1991; March I, 1987. 

.0105 IRREVOCABLE LETTER OF CREDIT 

The Motor Fuels Tax Division will accept an irrevocable letter of credit executed on the Department's 
Form Gas. 1213. 

History Note: Statutory Authority G.S. 105-449.5; 105-449.32; 
Eff January I, 1992. 

SECTION .0200 - CONSIGN.MENT: SALES IM'OICES: TAX FREE DELFV FRIES: METERS: 

MILEAGES 

.0201 TAX DUE 

The road tax and inspection fee is due on sales of fuels intended to propel a motor vehicle that are 
made by suppliers to users, bulk users or resellers. Suppliers are required to coUect and remit the motor 
fuels tax and inspection fee on all sales of special fuels to bulk users and resellers except dchveries into 
separate tanks that are for non-highway use only. The tanks and dispensers must be plainly marked 
"for non-highway use only." A supplier that makes deliveries of special fuels to resellers on consign- 
ment may elect to pay the road tax and inspection fee on the total number of gallons dchvered into 
storage for highway use or the total gallons withdrawn from storage for highway use. Bulk users and 
resellers are not permitted to ha\'e common storage of tax free fuel for highway use and non-highway 
use. 

History Note: Statutory Authority G.S. 105-449.16; 105-449.19; 105-449.32; 
Eff January 1, 1983; 
Amended Eff January 1, 1992; March 1. 1987. 

SECTION .0300 - LIQUIFIED PETROLEUM GAS 

.0301 PROP.ANE GAS DISTRIBUTORS USFSG OR SELLING 

The term suppliers (as defmed in G.S. 105-449.2(10)] includes any propane gas distributor using or 
selling special fuels. It is unlawful for a suppUer to sell and or use special fuels without first obtaining 
a suppher's Ucense issued by the Motor Fuels Tax Division. No fee is due for the license, and it is 
continuous until cancelled by the Department of Revenue or licensee. 

History Note: Statutory .Authority G.S. 105-449.19; 105-449.32; 
Eff January 1, 1983; 
Amended Eff January 1. 1992: March 1, 1987. 

SI BCHAPTER 91 - HIGHWAY FUEL USE TAX 

SECTION .0100 - OPERATIONS 

.0102 OPERATIONS OF ^ EHICLES EXCLUDED FROM REPORTS 

(a) Every motor carrier shall report the operations of all subject vehicles in its fleet when calculating 
fuel used in North Carolina pursuant to G.S. 105-449.44 for purposes of filing the report required by 



6:21 NORTH CAROLINA REGISTER Februaiy 3, 1992 1621 



FINAL RULES 



G.S. 105-449.45, except that the motor carrier may exclude such vehicles that operate exclusively 
intrastate. 

(b) Vehicles using special fuels that operate wholly within North Carolina must be reported on the 
appropriate special fuels report, i.e.; supplier, reseller, bulk user or user. 

History Note: Statutory Authority G.S. 105-262: 105-449.32: 105-449.37; 105-449.44; 105-449.45; 
Eff. Januarv /, 1983; 
Amended Eff. January I, 1992; February I, 1990: March 1, I9S7. 

.0103 REGISIRATION CARDS AND VEHICLE IDENTIFICATION MARKERS 

History Note: Statutory Authority G.S. 105-262; J 05-449.32: 105-449.37; 105-449.45; 105-449.47; 
Eff. January I, 1983; 

Amended Eff. February I. 1990; March f 1987; 
Repealed Eff. January I, 1992. 

SECTION .0300 - CREDITS AND REFLADS 

.0303 AMOUNT OF BOND REQUIRED 

The Secretary may require a motor carrier to furnish a bond. The amount of bond required is based 
on the larger of the following amounts: 

(1) Five hundred dollars ($500.00). 

(2) Four times the motor carrier's average tax liability or refund for a reporting period. 

For bonds exceeding five hundred dollars ($500.00), the amount of bond shall be rounded to the nearest 
one thousand dollars ($1,000.00). If the amount required is exactly between two one thousand dollar 
($1,000.00) increments, the amount shall be rounded to the higher of the two. 

History Note: Statutory Authority G.S. 105-262; 105-449.40; 
Eff Januan' /, 1983; 
Amended Eff. January 1 , 1992. 

.0304 TYPES OF ACCEPTABLE BONDS 

The Motor Fuels Tax Division will accept surety bonds on Form Gas. 1212, furnished by this Divi- 
sion, executed by any surety company licensed to do business in this State. The Division will also 
accept bonds secured by the following types of collateral: 

(1) Certificates of deposit or cashier's checks, made payable to the taxpayer; 

(2) Negotiable U.S. Treasury bonds; 

(3) Negotiable U.S. Treasury notes; 

(4) Public School Facilities bonds; 

(5) Housing Finance Agency bonds; 

(6) General Obligation Bonds of the State of North Carolina or its political subdivisions; and 

(7) Revenue Bonds of the State of North Carolina or its political subdivisions with a rating of at least 
B/\y\ or BBB. 

Notes and bonds tendered as collateral must have a fair market value at least equal to 1 1 5 percent of 
the collateral required. 

History Note: Statutory Authority G.S. 105-262: 105-449.40; 
Eff Januar\' /, 1983; 
Amended Eff January I, 1992; October /, 1991; March /, I9S7. 

SECTION .0400 - TAX REPORTS .AND MILES PER GALLON FACTORS 

.0401 Ql ARTERLV TAX REPORT 

History Note: Statutory Authority G.S. 105-262; 105-449.39; 105-449.42; 
105-44944 throu?.h 105-449.45; 
Eff Januan f 1983; 

Amended Eff February I. 1990; March /, 1987; 
Repealed Eff January f 1992. 



1622 6:21 NORTH CAROLINA REGISTER February 3, 1992 



FINAL RULES 



SECTION .0500 - REGISTRATION CARDS AND IDENTIFICATION MARKERS 

.0501 APPLICATION FOR VEHICLE REGISTRATION: FORM GAS. 1274 

History Note: Statutory Authority G.S. 105-262; 105-449.3; 105-449.9; 105-449.32; 105-449.45; 
105-449.47 through 105-449.48; 105-449.50; 
Eff. January I, 1983; 

Amended Eff. February I, 1990; March I, 1987; 
Repealed Eff January 1, 1992. 

.0503 PERMITS: LEASES 

History Note: Statutory Authority G.S. 105-262; 105-449.37; 
Eff January I, 1983; 

Amended Eff February I. 1990; March I, 1987; 
Repealed Eff. January I, 1992. 

.0505 IMPORTANT NOTICE TO CARRIERS: FORM GAS. 1279 

History Note: Statutory Authority G.S. 105-262; 105-449.39; 105-449.41 through 105-449.48; 
Eff January I, 1983; 
Repealed Eff January 1, 1992. 

.0506 DEALER: MANUFACTURER: DRI\ EAWAY: TRANSPORTER 

Persons operating heavy vehicles with a dealer, manufacturer, driveaway or transporter license plate, 
issued either in North Carolina or other jurisdictions must obtain a fuel license and a vehicle identifi- 
cation marker, from the Motor Fuels Tax Division or another International Fuel Tax Agreement 
(IFTA) jurisdiction. The marker does not have to be mounted on the vehicle. These vehicles must 
have a fuel hcense and vehicle identification marker at aU times while operating in North Carolina. 

History Note: Statutory Authority G.S. 105-262; 105-449.45; 105-449.47; 105-449.48; 105-449.50; 
Eff March I. 1987; 
Amended Eff January 1, 1992; October 1, 1991; February 1. 1990. 

SUBCHAPTER 9J - GASOLPSE: SPECIAL FUELS AND KEROSENE INSPECTION 

SECTION .0200 - KEROSENE IMPORTER 

.0203 TYPES OF ACCEPTABLE BONDS 

The Motor Fuels Tax Division will accept surety bonds on Form Gas. 1212, furnished by this Divi- 
sion, executed by any surety company hcensed to do business in this State. 1 he Division wiU also 
accept bonds secured by the following types of coUateral: 

(1) Certificates of deposit or cashier's checks, made payable to the taxpayer; 

(2) Negotiable U.S. Treasury bonds; 

(3) Negotiable U.S. Treasury notes; 

(4) Pubhc School Facilities bonds; 

(5) Housing Finance Agency bonds; 

(6) General Obligation Bonds of the State of North Carolina or its political subdivisions; and 

(7) Revenue Bonds of the State of North Carolina or its political subdivisions with a rating of at least 
BAA or BBB. 

Notes and bonds tendered as collateral must have a fair market value at least equal to 1 15 percent of 
the collateral required. 

History Note: Statutory Authority G.S. 105-262; 105-269.3; 119-16.2; 
Eff January 1, 1983; 
Amended Eff January 1, 1992; October I, 1991; March I, 1987. 



6:21 NORTH CAROLINA REGISTER February 3, 1992 1623 



LIST OF RULES CODIFIED 



1 he List of Rules Codified is a listing of rules that were filed with OAH in the month indicated. 


Key: 




Citation 


= Title, Chapter, Subchapter and Rule(s) 


AD 


= Adopt 


AM 


= Amend 


RP 


= Repeal 


With Chgs 


= Final text differs from proposed text 


Eff Date 


= Date rule becomes effective 


Temp. E.xpires 


= Rule was filed as a temporary' rule and e.xpires on this date 



NORTH CAROLINA ADMINISTRATIVE CODE 
DECEMBER 1991 



TITLE DEPARTMENT 



2 


Agriculture 


4 


Economic and Community 




Development 


9 


Governor Lt. Governor 


10 


Human Resources 


11 


Insurance 


13 


Labor 


14A 


Crime Control and 




Public Safety 



TITLE DEPARTMENT 

15A Environment, Health, 

and Natural Resources 

16 Public Education 

17 Re\'enue 

19A Transportation 

21 Occupational Licensing Boards 

19 - Electrolysis 
32 - Medical Examiners 



Citation 


AD 


AM 


RP 


With 
Chgs 


Efr. 

Date 


Temp. 
E,\pires 


-) 


NCAC 


9L 


2101 - .2103 


• 








02 01 92 






2104 


• 






• 


02 01 92 






2105 - .2107 


• 








02 01 92 




4 


NCAC 


6C 


0311 




• 




• 


02 01 92 






0401 




• 






02 01 92 






0402 - .0403 




• 




• 


02 01 92 






1301 




• 




• 


02 01 92 




9 


NCAC 


3L 


0100 - .1200 
ransferred and 
-ccodificd to 
5 A NCAC IJ 
0100 - .1200 










12 05 91 




10 


NCAC 


26D .0016 




• 






02 01 92 




26H .oio:- 




• 




• 


02 01 92 




.0209 


• 








02 01 92 




.0402 






• 




02 01 92 





1624 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


EfT. 
Date 


Temp. 
E.xpires 


10 NCAC 26H .0508 




• 






02 01 92 




SOB .0101 - .0102 




• 






02 01 92 




11 NCAC 12 .0303 






• 




02 01 92 




.0305 






• 




02 01 92 




.0306 




• 






02 01 92 




.0307 




• 




• 


02 01 92 




.0312 




• 




• 


02 01 92 




.0317 




• 






02 01 92 




.0318 






• 




02 01 92 




.0321 - .0322 




• 




• 


02 01 92 




.0323 




• 






02 01 92 




.0325 - .0326 


• 






• 


02 01 92 




.0402 






• 




02 01 92 




.0404 




• 






02 01 92 




.0414 






• 




02 01 92 




.0420 










02 01 92 




.0426 - .0427 










02 01 92 




.0431 










02 01 92 




.0434 










02 01 92 




.0447 










02 01 92 




.0448 










02 01 92 




.0460 


• 








02 01 92 




.0504 






• 




02 01 92 




.0514 




• 




• 


02 01 92 




.0517 




• 




• 


02 01 92 




.0526 




• 




• 


02 01 92 




.0527 






• 




02 01 92 




.0537 






• 




02 01 92 




.0549 




• 






02 01 92 




.0553 




• 




• 


02 01 92 




.0554 






• 




02 01 92 




.0555 - .0557 




• 




• 


02 01 92 




.0558 






• 




02 01 92 




.0559 


• 






• 


02 01 92 




.1101 - .1107 


• 






• 


02 01 92 




13 NCAC 7C .0101 




• 






03 06 92 




14A NCAC 9B .0101 






• 




01 01 92 





6:21 NORTH CAROLINA REGISTER Februayy 3, 1992 



1625 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


EfT. 
Date 


Temp. 
E.xpires 


15,A NC.\C IJ .0100 -.1200 

transferred and 
recodified from 
9 SCAC 3L 

.0100 - .1200 










12 05 91 




3 J .0104 








• 


02 01 92 




3K .0105 








• 


02 01 92 




3M .0503 - .0504 










02 01 92 




.050'^ 








• 


02 01 92 




4A .0001 










02 01 92 




.OOOfi 










02 01 92 




4B .0009 










02 01 92 




.0016 








• 


02 01 92 




.00 IS 








• 


02 01 92 




.0025 










02 01 92 




1 3.A .0006 










02 01 92 




.0009 - .0010 










02 01 92 




18A .1945 










02 01 92 




18C .1534 










02 01 92 




19H .0-02 










02 01 92 




24,-\ .0202 










02 01 92 




.0302 - .0303 










02 01 92 




.0402 










02 01 92 




16 NC.\C 6D .0103 










07 01 92 




\- NC\C 9(j .0105 










01 01 92 




.0107 


• 








01 01 92 




9H .0103 










01 01 92 




.0105 


• 








01 01 92 




.0201 










01 01 92 




.0301 










01 01 92 




91 .0102 










01 01 92 




.0103 






• 




01 01 92 




.0303 - .0304 




• 






01 01 92 




.0401 






• 




01 01 92 




.0501 






• 




01 01 92 




.0503 






• 




01 01 92 




.0505 






• 




01 01 92 




.0506 




• 






01 01 92 





1626 



6:21 AORTH CAROLINA REGISTER February 3, 1992 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


EfT. 
Date 


Temp. 
Expires 


17 


NCAC 


9J .0203 




• 






01 01,92 




19A 


NCAC 


3D .0801 




• 






02 01 92 


07 30 92 


21 


NCAC 


19 .0202 


• 






• 


02 01,92 




32B .0101 




• 






01 01 92 




.0305 




• 






01 01 92 




.0314 - .0315 




• 






01 01 92 





6:21 NORTH CAROLINA REGISTER Febriiaiy 3, 1992 



1627 



RRC OBJECTIONS 



1 he Rules Reiiev.- Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 

1 emporary Rules are noted bv "*". These Rules have already gone into effect. 



ADMESISTRATION 

State Construction 

/ SCAC 30F .0101 - Authority 

1 NCAC 30F .0/03 - Definitions 

I XCAC 30F .0202 - Pre- Bid Conferences and Site Reviews 

1 SCA C 30F .0301 - Definitions 

1 XCAC 30F .0302 - OverallJob Performance 

1 NCAC 30F .0303 - Interim Contractor Evaluation 

J XCAC 30F .0305 - Report Compilation 

I XCAC 30F .0401 - Post-Occupancy Evaluation 

1 XCAC 30F .0403 - .Appeals of .Assigned Eval or Disqual from Bidding 

AGRICLLTLRE 

Plant Industn' 

2 XCAC 4SE .0101 - Definitions 
Agency Revised Rule 
Agency Responded 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol 

I4A XCAC 9H .0304 - Xoiifying Registered Owner 

ECONOMIC AND COMMUNITY DE\ ELOP.MENT 

Credit L'nion Di\ision 

4 XC.-iC 6C .031 1 - Surety Bond and Insurance Coverage 
Agency Revised Rule 

4 A CAC 6C .0401 - Delinquent Loans and Loan Losses 

4 XCAC 6C .0402 - Charge-Off of Uncollectible Loans 

Agency Revised Rule 
4 XCAC6C .0403 - Real Estate Loans 

Agency Revised Rule 
4 XCAC6C .1301 - Liquidity Resen-es 

Agency Re\ised Rule 

EDUCATION 

Elementary' and Secondar.' Fducation 

16 XC.4C 6D .0/03 - Graduation Requirements 



RRC Objection 


10 /7,91 


RRC Objection 


/O /7 91 


RRC Objection 


/on. 91 


RRC Objection 


/O /7.91 


RRC Objection 


/O /? 91 


RRC Objection 


/O /? 91 


RRC Objection 


/O /7.91 


RRC Objection 


/O /7 91 


RRC Objection 


/O /7 91 



RRC Objection 70/7 9/ 
RRC Objection 10/^9/ 
Xo Action /2/991 



RRC Objection /2 /9. 91 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



// 21 9/ 
/2 /9 9/ 
// 21 91 
/21991 
/I 21 91 
/2 /9 91 
// :/ 91 
/2 /9 91 

// 21:91 

12 19 91 



A RRC Objection 9/9 91 



162S 



6:21 NORTH CAROLINA REGISTER February 3, 1992 



RRC OBJECTIONS 



Xo Response from Agency 
Agency Revised Rule 

EN\ IRONMEM, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

ISA \CAC 7J .0402 - Criteria for Grant or Denial of Permit Applications 
ISA NCAC 7M .0201 - Declaration of General Policy 

.Agency Responded 
ISA NCAC 7.\f .0202 - Policy Statements 

Agency Responded 
ISA XCAC 7M .0303 - Policy Statements 

Agency Responded 
ISA NCAC 7M .0403 - Policy Statements 

.Agency Responded 
ISA NCAC 7M .0901 - Declaration of General Policy 

Agency Responded 

Health: Epidemiology 

ISA NCAC 19 A .0202 - Control Mea.mres - HIV 
ISA NCAC I9H .0702 - Research Requests 
Agency Revised Rule 

Sedimentation Control 

ISA NCAC 4 A .OOOS - Definitions 

ISA NCAC4C .0007 - Procedures: Notices 

HUMAN RESOURCES 

Facility Services 

10 NCAC 3 J .290 S - Personal Hygiene Items 

Mental Health: General 

10 NCAC I4S .0102 - Communication Rights 
Agency Responded 

10 NCAC I4S .0103 - Living E/nironment 
Agency Responded 

ESSURANCE 

Life and Health Division 

// NCAC 12 .0S07 - Fraternal Orders: Societies and Associations 

11 NCAC 12 .1202 - Definitions 
II NCAC 12 .1209 - Discrimination 

LICENSING BOARDS AND COMMISSIONS 

Certified Public Accountant Examiners 

* 21 NCAC SG .0313 - Firm Name 
Agency Responded 



10117/91 
Obj. Removed 12119191 



RRC Objection 
RRC Objection 
No Action 
RRC Objection 
No Action 
RRC Objection 
No Action 
RRC Objection 
No Action 
RRC Objection 
No Action 



I0II7I9I 
10/17/9/ 
12/19/91 
10/17/91 
I2/I9i9l 

10/17/91 
12/19/9/ 
10/17/9/ 
12/19/9/ 
10/17/9/ 
l2//9i9/ 



RRC Objection 10/17,91 
RRC Objection 1 1/21/91 
Obj. Removed 12/ 1 9/9/ 



RRC Objection 12/19/9/ 
RRC Objection 12/19/9/ 



RRC Objection 10/17/91 



ARRC Objection 9/19/91 
10/17/91 

ARRC Objection 9119/91 
10/17/9/ 



R/iC Objection 12/19/9/ 
RRC Objection 12/19^9/ 
RRC Objection 12/19,9/ 



RRC Objection lO: 17/91 
No .Action 12/19,91 



6:21 NORTH CAROLINA REGISTER February 5, 1992 



1629 



RRC OBJECTIONS 



Electrolysis Fxaminers 

* 2/ NCAC 19 .0202 - App; Licensure! /Electrologist Practicing/ 1 1 /i92 RRC Objection J 1/2/19/ 

Agency Revised Ride Obj. Removed /2/ /9/9/ 

STATE PERSONNEL 

Office of State Personnel 

25 NCAC /L .030/ - Purpose RRC Objection ///2//9/ 

Agency VVitfidrew Rule /2/I9/9/ 



1630 6:21 iWRTH CAROLINA REGISTER Febiiiaiy i, 1992 



RULES IN VALID A TED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
imxilidate a rule in the North Carolina Administrative Code. 



ISA NCAC 7 J .0301 - WHO IS ENTITLED TO A CONTESTED CASE HEARING 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 07J .0301(b) void as applied in Lucy R. Hanson, Stanley P. and Jean C. Szwed, Petitioners 
V. N.C Department of Environment, Health, and Natural Resources, Division of Coastal Management, 
Respondent (91 EHR 0551, 91 EHR 0557). 

ISA NCAC 21 D .0802(b)(2) - AVAILABILITY 

Robert RoosevcU ReilJy Jr., Administrative Law Judge with the Office of Administrative Hearings, de- 
clared Rule 15A NCAC 21 D .0802(b)(2) void as applied in Wilson's Supermarket #12. Petitioner v. De- 
partment of Environment, Health, and Natural Resources, Respondent (91 EHR 0795). 

ISA NCAC 21 D .OSOS - DECISION 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 21D .0805 void as apphed in Glenn E. DavislDavis Grocery, Petitioner v. N.C. Department 
of Environment, Health, and Natural Resources, Division of Maternal and Child Health, WIC Section, 
Respondent (91 EHR 0694). 



6:21 NORTH CAROLINA REGISTER Februmy 5, 1992 1631 



NOR TH CAROLINA ADMINISTRA TIVE CODE CLASSIFICA TION SYSTEM 



The North Carolina Adminislralive Code (NCACj has four major subdivisions of rules. Two 
of these, titles and chapters, are mandatory. The major subdivision of the NCAC is the title. 
Each major department in the North Carolina executive branch of government has been as- 
signed a title number. Titles are further broken down into chapters which shall be numerical 
in order. The other two, subchapters and sections are optional subdivisions to be used by 
agencies when appropriate. 

TITLK/M AJOR DIMSIONS OF THE NORTH CAROLINA ADMINISTRATE E CODE 

TITLE DKPAR IMEN I LICENSING BOARDS CHAPTER 



1 


Administration 


Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Lxaminers 


6 


4 


I'conomic and Community 


Certified Public Accountant Examiners 


8 




Development 


Chiropractic Examiners 


10 


5 


Correction 


General Contractors 


12 


6 


CouncU of State 


Cosmetic r\rt Examiners 


14 


7 


Cultural Resources 


Dental Lxaminers 


16 


8 


I'lections 


Electrical Contractors 


18 


9 


Cjo\emor 


Electrologists 


19 


10 


Human Resources 


Foresters 


20 


11 


Insurance 


Geologists 


21 


12 


Justice 


I learing Aid Dealers and Fitters 


22 


13 


Labor 


L,andscape Architects 


26 


14A 


CMme Control and Public Safety 


Landscape Contractors 


28 


13A 


L'n\ironment, Health, and Natural 


Marital & Family Therapy 


31 




Resources 


Medical Examiners 


32 


16 


Public Education 


Midwifen, Joint Committee 


33 


17 


Revenue 


Mortuar>- Science 


34 


18 


Sccrctar) of State 


Nursing 


36 


19A 


Transportation 


Nursing Home Administrators 


37 


20 


Treasurer 


Occupational Therapists 


38 


*21 


Occupational Licensmg Boards 


Opticians 


40 


22 


Administrative Procedures 


Optometry' 


42 


23 


Community Colleges 


Osteopathic Examination and 


44 


24 


Independent Agencies 


Registration (Repealed) 




25 


State Personnel 


Pharmacy 


46 


26 


Administrative Hearings 


Physical Therapy Examiners 


48 






Plumbing. I leating and Fire Sprinkler 


50 






Contractors 








Podiatr\- Fxaminers 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers and Land Sur\'eyors 


56 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitanan 1-xaminers 


62 






Social Work 


63 






Speech and Language Pathologists and 


64 






Audiologists 








Veterinar\ Medical Board 


66 



Note: Title 21 contains the chapters of the \arious occupational licensing boards. 



i6n 



6:21 NORTH CAROLINA REGISTER Febniary 3, 1992 



CUMULA TIVE INDEX 



CUMULA TIVE INDEX 

(April 1991 - March 1992) 



1991 - 1992 



Pages 



Issue 



1 - 44 1 - April 

44 - 99 2 - April 

100 - 185 3 - May 

186 - 226 4 - May 

227 - 246 5 - June 

247 - 325 6 - June 

326 - 373 7 - July 

374 - 463 8 - July 

464 - 515 9 - August 

516 - 677 10 - August 

678 - 721 11 - September 

722 - 783 12 - September 

784 - 923 13 - September 

924 - 980 14 - October 

981 - 1107 15 - November 

1108 - 1275 16 - November 

1276 - 1300 17 - December 

1301 - 1423 18 - December 

1424 - 1503 19 - January 

1504 - 1562 20 - Januar>' 

1563 - 1636 21 - February 



AO - Administrative Order 

AG - Attorney General's Opinions 

C - Correction 

FR - Final Rule 

GS - General Statute 

JO - Judicial Orders or Decision 

M - Miscellaneous 

\P - Notice of Petitions 

PR - Proposed Rule 

SO - Statements of Organization 

TR - Temporary' Rule 



ADMINISTRATION 

State Construction, 465 PR 

State Fmployees Combined Campaign, 924 PR 

ADMINISIRATrVE HEARINGS 

Hearin2s Division, 310 PR 
Rules Division, 665 PR 

ADMINISTRATH E ORDER 

Administrative Order, 926 AO 



6:21 NORTH CAROLINA REGISTER Febiuaiy 3, 1992 



1633 



CUMULA TIVE INDEX 



AGRICLLTLRE 

Food and Drua [Protection Di\ision, 576 PR, 725 PR, 1303 PR 

Markets, 5^6 PR 

North Carolina State Fair, 576 PR 

Pesticide Board, 725 PR 

Plant Industr>-, 102 PR, 469 PR, 576 PR 

Structural Pest Control Division, 1569 PR 

CORRFCTION 

Division of Pnsons. 35 FR, 87 FR, 209 FR, 700 FR, 938 FR 

CRIME CONTROL AND PI BLIC SAFET\' 

State Highwa\- Patrol. Di\ision of, 809 PR 

CL LTl RAL RESOL RCES 

.-Vrchives and Historv. 932 PR 
State Librarv', 686 PR 

ECONOMIC AND COMMLAITY DE\ ELOPMENT 

Alcoholic Be\erage Control Commission. 4 PR 

Banking Commission. 1424 PR 

Conxmunitv Assistance. 104 PR, 1579 PR 

Credit Imon Division. 231 PR. 683 PR. 1108 PR 

Fmplo\ment and Training. 590 PR 

Savings Institutions Division. 984 PR 

ENA IRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management. 299 PR. 1 139 PR 
Departmental Rules. 1513 PR 

Environmental Management. 197 PR. 2^1 PR. 447 PR, 1061 PR. 1315 PR. 1520 PR. 1611 PR 
Forest Resources, 300 PR 

Governor's \\'aste Management Board, 1277 PR 
Heahh: Fpidemiolosv. 28 PR. 341 PR, 735 PR, 1279 PR 
Health Senices. 9 PR. 327 PR, 727 PR, 815 PR, 1452 PR 
Land Resources. 494 PR. 810 PR 
Marme Fishenes, 122 PR. 690 PR 
Parks and Recreation, 693 PR 
Radiation Protection. 1367 PR 
State Registrar, 734 PR 
Water Treatment Facilitv Operators. 495 PR 

Wildlife Resources Commission, 84 PR, 170 PR, 198 PR. 301 PR. 64^ PR, 692 PR. 1062 PR, 
1323 PR. 1542 PR. 161') PR 

FESAL DECISION LETTERS 

Voting Rights .\ct. 48. 230. 248. 326. 464. 516, 681, 722. 806, 927, 1301. 1505. 1566 

GENERAL STATl TES 

Chapter 150B. 7S4 GS 

GO\ ERNOR/LT. GO\ ERNOR 

Fxecutive Orders. 1. 45, 100, 186. 227, 247, 374, 678, 804, 924, 981, 1276, 1504, 1563 

HUMAN RESOURCES 

Agintz, Division of. 72 PR. 422 PR 

Blind^, Senices for. 686 PR 

Departmental Rules. 1 1 14 PR 

Economic Opportumtv, 604 PR, 689 PR 

Facilitv Sen-ices. 104 PR. 4"'! PR, 592 PR. 1035 PR. 1443 PR. 1584 PR 



1634 6:21 NORTH CAROLINA REGISTER Ecbiiiavy 3, 1992 



CUMULA TIVE INDEX 



Medical Assistance, 9 PR, 1 12 PR, 188 PR, 232 PR, 250 PR, 430 PR, 492 PR, 601 PR, 688 PR, 

726 PR, 807 PR, 932 PR, 1036 PR, 1277 PR, 1452 PR 
Mental Health, Developmental Disabilities and Substance Abuse Services, 5 PR, 49 PR, 375 PR, 

449 FR, 1446 PR 
Social Services, 116 PR, 1039 PR. 1607 PR 

rsDEFENDFAT AGENCIES 

Housing Finance Agency, 1484 PR 

Safety and Health Review Board of North Carolina, 1069 PR 

rSSlRANCE 

Actuanal Ser\ices Division, 119 PR, 1060 PR 
Aaent Services Division, 1056 PR. 1303 PR 
Financial Evaluation Division, 933 PR. 1308 PR 
Life and Health Division, 430 PR. 1 1 14 PR 
Property and Casualty Di\ision, 1509 PR 
Special Services Division, 84 PR 

JUSTICE 

Criminal Justice Education and Training Standards, 607 PR 
Private Protective Scr\ices, 121 PR 
Sheriffs' Standards Division, 618 PR 
State Bureau of In\cstigation, 250 PR 

LABOR 

Boiler and Pressure Vessel. 1310 PR 

Occupational Safety and Heahh. 1138 PR, 1309 PR 

LICENSING BOARDS 

Architecture. Board of. 30 PR. 232 PR 

Certified Public Accountant Examiners. 201 PR, 935 PR, 1141 PR 

Cosmetic Art Examiners. 653 PR. 1066 PR 

Electrolysis Examiners. Board of. 737 PR 

Geologists, Board of, 654 PR 

Hearing Aid Dealers and Fitters. 496 PR. 655 PR 

Landscape Contractors' Registration Board, 665 PR 

Medical Examiners, Board of, 304 PR, 363 PR, 935 PR 

Nursing. Board of. 305 PR 

OptometPv'. Board of Examiners. 1068 PR 

Pharmacy. Board of. 201 PR. 14S0 PR 

Physical Therapy Examiners, Board of. 33 PR. 363 PR 

Practicing Psychologists Examiners. 203 PR 

Professional Engineers and Land Survevors, 497 PR 

Real Estate Commission, 171 PR, 500 PR. 1546 PR 

LIST OF RULES CODIFIED 

List of Rules Codified, 89, 215, 314, 451, 504, 711, 907, 1087, 1281, 1487, 1624 

PUBLIC EDUC.A HON 

Elementary and Sccondar,-. 29 PR, 199 PR, 303 PR, 694 PR, 1140 PR 

RIAENUE 

Corporate Income and Franchise Tax Division. 816 FR 

Departmental Rules. 968 FR 

Individual Income, Inheritance and Gift Tax Division, 739 FR 

Individual Income Tax Division. 234 FR. 747 FR 

Intangibles Tax Division, 766 FR, 969 FR 

License and Excise Tax Division, 740 FR, 969 FR 

Motor Fuels Tax Division. 768 FR. 1620 FR 



6:21 NORTH CAROLINA REGISTER February 3, 1992 1635 



CUMULA TIVE INDEX 



Property Tax Commission. 210 FR 
Sales and Use Tax, 817 FR 

SECRETARY OE STATE 

Securities Di\ision, 85 PR 

SI ATE PERSONNEL 

Office of State Personnel, 696 PR, 1082 PR, 1485 PR 
State Personnel Commission, 172 PR, 364 PR 

SFAl E TREASL RER 

Retirement Systems. 736 PR 

STATEMENTS OE ORGANIZATION 

Statements of Organization, 518 SO 

TRANSPORTATION 

Assistant Secretax)' For Management, 1254 FR 

Assistant Secretar\^ For Planning. 1259 FR 

Departmental Rules. 1142 F"R 

Division of Hiahwas s. 1 146 FR 

Division of Motor Vehicles, 213 FR, 502 FR, 701 FR, 773 FR, 1229 FR, 1545 PR 



16i6 6:21 NORTH CAROLINA REGISTER Eebniaiy 3, 1992 



NORTH CAROLINA ADMINISTRATIVE CODE 

The full publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the full publication including supplements can be 
purchased for seven hundred and fifty dollars ($750.00). Jndix'idual volumes may also be purchased with 
supplement sen-ice. Renewal subscriptions for supplements to the initial publication are a\'ailable at one- 
half the new subscription price. 

PRICE LIST FOR THE SUBSCRIPTION YEAR 



Volume 


Title 


Chapter 


Subject 


New 
Subscription* 


Total 
Quantity Price 


1 - 52 


FuU Code 
1 

2 
2 

3 

4 

4 

5 

5 

6 

7 

8 

9 

10 

10 

10 

10 
10 
10 
10 
10 
10 
10 
10 
10 
10 
10 
10 
10 

11 

12 
13 
13 
13 
14A 

15A 
15A 
15A 
15A 
15A 


1 - 37 
1 - 24 
25- 52 
1 -4 
1 - 2 
3- 20 
1 - 2 
3-4 
1 -4 
1 - 12 
1 - 9 
1 - 4 
1 - 2 
3A - 3K 
3L-3R 

3S - 3W 

4 - 6 

7 

8- 9 

10 

11-14 

15 - 17 

18 

19-30 

31 - 33 

34-41 

42 

43 - 51 

1 - 15 

1 - 12 

1 - 6 

7 

8- 16 

1-11 

1 - 2 
3- 6 
7 

8- 9 
10 


/Vll titles 

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ncD 

Correction 
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Council of State 
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Human Resources 
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(mcludes CON) 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
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Labor 
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EHNR 

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$750.00 
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75.00 
90.00 
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90.00 
90.00 
90.00 
30.00 
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45.00 

45.00 
90.00 
45.00 
45.00 
30.00 
45.00 




1 




-) 




3 




4 




5 




6 




7 




8 




9 




10 




11 




12 




13 




14 




15 




16 




17 




18 




19 




20 




21 




22 




23 




24 




25 




26 




27 




28 




29 




30 




31 




32 




33 




34 




35 




36 




37 




38 






Continued 



New Total 

\'()liime litlo Chapter Subject Subscription* Quantify Price 

rnxR 90.00 

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(includes Breathalizer) 75.00 

Fducation 30.00 

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Licensing Boards 

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Community Colleges 10.00 

Independent Agencies 10.00 

State Personnel 60.00 

Administrative Hearings 10.00 



39 


15A 


11 - 18 


40 


15A 


19 - 26 


41 


16 


1 - 6 


42 


17 


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7- 11 


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50 


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1 


53 


26 


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